William Walsh v. Waste Management, 2009 HRTO 2201

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Walsh

Applicant

-and-

Waste Management

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: December 17, 2009

Citation: 2009 HRTO 2201

Indexed as: Walsh v. Waste Management

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) in which he alleges discrimination on the basis of disability in the context of employment.

2On October 28, 2009, the Tribunal issued a “Notice of Intent to Defer” under Rule 14 of its Rules of Procedure as the applicant has also filed a grievance which seems to be based on the same facts and issues as the Application. The grievance is scheduled to be heard by an arbitrator on December 10, 2009.

3In its Notice of Intent to Defer, the Tribunal invited submissions from the parties and the Christian Labour Association of Canada (“Association”) regarding the deferral issue. Neither the parties nor the Association provided submissions.

4Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure (“Rules”).

5Rule 14.1 of the Rules states:

6The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

7The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. This is because grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement. See Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970.

8Based on the material before me, I am satisfied that many of the facts and issues raised by this Application are part of a grievance process. In the circumstances, the arbitration proceeding should proceed to its conclusion before the Tribunal will deal with whatever might remain of the merits of the Application.

9Accordingly, the Application will be deferred pending the completion of the grievance and arbitration process.

10The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which a party may request that the Application proceed. The Union’s Request to Intervene can be dealt with by the Tribunal if and when the Application proceeds.

11I am not seized of this matter.