Mark Mitchell v. Liquor Control Board of Ontario, 2009 HRTO 444

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Mitchell

Applicant

-and-

Liquor Control Board of Ontario

Respondent

INTERIM DECISION

Adjudicator: Judith Keene

Date: April 15, 2009

Citation: 2009 HRTO 444

Indexed as: Mitchell v. Liquor Control Board of Ontario

1The applicant filed an Application with the Tribunal on February 26, 2009, pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the ground of disability. The applicant must do four dialysis procedures a day at differing intervals. A key issue in the Application, as identified by the applicant, is his request that he be accommodated to do dialysis exchanges at work as needed.

2The applicant asks that the Application be expedited pursuant to Rule 21 of the Tribunal’s Rules of Procedure for applications under Part IV of the Code. In support of his Request to Expedite, the applicant points out that dialysis is a life sustaining procedure. He states that not being able to do dialysis at work is adding stress that has an impact on his physical well-being.

3The respondent opposes the Request to Expedite. It states that it has made arrangements so that the applicant can perform his dialysis during his shifts, and that the applicant has been doing so since March 2, 2009.

4The applicant has filed a grievance under a collective agreement between the respondent and his union, the Ontario Public Service Employees Union (“OPSEU”), in respect of the facts at issue in this Application.

5In the normal course, the Tribunal would issue a notice of its intention to defer the application pending the resolution of the grievance, and would provide the parties an opportunity to make submissions on the proposed deferral (See Rule 14). As this Application is accompanied by a Request to Expedite, the Tribunal will seek submissions on the appropriateness to defer along with any further submissions on the Request to Expedite.

6OPSEU has been served with the Application and the Request to Expedite, with a direction from the Registrar that, if it wishes to apply to intervene in this Application, it must respond to the Request to Expedite by March 11, 2009. OPSEU has not responded, by the due date, so it appears that it will not be applying to intervene. However, OPSEU, as an “affected person” for the purposes of the Tribunal’s Rules of Procedure, may make submissions on whether this Application ought to be deferred pending the resolution of the grievance.

7As noted above, this Application is accompanied by a Request to Expedite, and involves allegations which are also the subject of a grievance under a collective agreement. It is therefore appropriate to issue specific procedural directions to ensure that this matter is dealt with fairly and expeditiously. In the circumstances, I order the following:

a) No later than seven days from the date of this Interim Decision, the respondent shall deliver to the applicant and to OPSEU, and file with the Tribunal, submissions as to whether they believe this Application ought to be deferred pending the resolution or determination of any grievance filed under the collective agreement.

b) No later than seven days from the date of this Interim Decision, OPSEU may deliver to the applicant and to the respondent, and file with the Tribunal, submissions as to whether they believe this Application ought to be deferred pending the resolution or determination of any grievance filed under the collective agreement.

c) No later than twenty-one days from the date of this Interim Decision, the applicant shall provide submissions, if any, to the position of the respondents and OPSEU (if any) on the issue of whether this Application should be deferred pending the resolution or determination of the grievance.

8Subject to any further order issued by the Tribunal, the Registrar will schedule a mediation/case conference.

9After receiving the various filings and submissions noted above, the Tribunal will issue further procedural orders in relation to this Application, and will either confirm or adjourn the mediation/case conference. The parties are also reminded that subject to the above order, or any further procedural orders, the requirements to file a Response or a Reply, as provided in the Rules, continue to apply.

10I am not seized of this matter.