Mike Gothard v. Kevin Gallagher, 2009 HRTO 252

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mike Gothard

Applicant

-and-

Kevin Gallagher

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: March 5, 2009

Citation: 2009 HRTO 252

Indexed as: Gothard v Gallagher

1The Application, filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges that the respondent, who is a supervisor with the applicant’s former employer, discriminated against the applicant on the basis of disability in respect of employment and engaged in reprisals contrary to the Code.

2The applicant is covered by a collective agreement between his trade union and his former employer.

3The respondent states that there are two outstanding grievances which raise some or all of the same facts and issues as the Application. Specifically, the respondent submits that the applicant’s trade union filed two grievances in November 2008 on the applicant’s behalf alleging, among other things, unjust suspension of the applicant by his employer, unjust discharge of the applicant and that the applicant’s employer violated Article 6 of the collective agreement which, among other things, prohibits discrimination and harassment on the basis of “handicap”. The employer denied the grievances at Step 2 of the grievance process in December 2008 and the applicant’s trade union has not yet notified the employer whether it will refer the grievances to arbitration. The respondent requests that the Tribunal defer consideration of this Application pending the conclusion of the grievance and arbitration procedure in respect of the November 18, 2008 grievances.

4The applicant acknowledges that the facts of the Application are part of grievances that are still in progress. However, he objects to deferral of his Application on the basis that his trade union fully supports his Application to the Tribunal and that the respondent is simply arguing that the Application should be deferred to delay his right to a fair hearing.

5The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

6The facts and issues raised by this Application are part of a grievance and arbitration process that is still in progress and the applicant has not identified any circumstances that would cause the Tribunal to depart from its normal approach.

7In these circumstances, deferral is appropriate. The Tribunal orders the deferral of this Application pending the conclusion of the arbitration hearing in respect of the applicant’s grievance. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the grievance and arbitration process has concluded.

8I am not seized of this matter.