HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N/ ENTRE:
Guy Laporte
Applicant/ Requérant
-and-
Couvent Mont-Saint-Joseph charité d’Ottawa and CUPE Local 4258
Respondents/ Intimés
INTERIM DECISION/ DÉCISION PROVISOIRE
Adjudicator/ Arbitre : Michelle Flaherty
Indexed as/Répertorié: Laporte v. Couvent Mont-Saint-Joseph charité d’Ottawa/Laporte c. Couvent Mont-Saint-Joseph charité d’Ottawa
1On October 31, 2008, the applicant filed an Application pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), in which he alleges that the respondents violated his right to equal treatment with respect to employment without discrimination because of disability.
2The applicant has named as respondents both his former employer and his former union. Both respondents filed a full Response in which they request an early dismissal and, alternatively, a deferral of the Application pursuant to s.45 of the Code. They argue that the substance of the Application is being dealt with by the Labour Relations Board (“Board”) through a duty of fair representation complaint the Applicant has brought against the union.
3Based on the parties’ submissions, it would appear that the Board has not yet rendered its decision in the duty of fair representation matter.
The Relevant Legislation
4Section 45.1 of the Code provides that the Tribunal may dismiss an application, in whole or in part, where another proceeding has appropriately dealt with the substance of the Application (Rule 22).
5In addition, pursuant to section 45 of the Code, the 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). In each case, the Tribunal must 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.
Analysis
6The Application before the Tribunal alleges discrimination by the respondent employer and the respondent union under the Code. The complaint before the Board is about an alleged breach of the union’s duties towards the applicant under section 74 of the Labour Relations Act, 1995, S.O. 1995, c.1, Schedule A, as amended (“LRA”).
7Thus, while this Application is between the applicant, the employer and the union, the duty of fair representation complaint is only between the applicant and the union.
8Section 74 of the LRA states that the union may not treat its members in a manner that is arbitrary, discriminatory or in bad faith.
9In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal described the relationship between discrimination in the context of the duty of fair representation and discrimination under the Code. It held that the requirement under s.74 of the LRA that a union not act in a discriminatory fashion includes but is broader than the notion of discrimination under the Code. While discrimination under the Code relates to statutorily-defined prohibited grounds, discrimination under s. 74 is broader and includes distinctions made between members of a union which are not based on cogent reasons.
10Further, as the Tribunal emphasized in Dunn, in addressing the duty of fair representation complaint, the Board will focus on the actions of the union. It will not address the merit of any allegations against the employer.
11Although there may be an overlap in some of the facts relevant to each, I find that this Application and the proceedings before the Board are distinct and involve different legal frameworks and different parties. It cannot be said the Application involves parties that are involved in ongoing litigation addressing substantially the same issues. In these circumstances, neither deferral nor dismissal is appropriate.
12I am not seized of this Application.
« Signed by »
Michelle Flaherty
Vice-présidente/ Vice-chair