Joseph Perpich v. South Essex Community Council and Canadian Union of Public Employees, 2009 HRTO 469

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joseph Perpich

Applicant

-and-

South Essex Community Council and Canadian Union of Public Employees

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: April 21, 2009

Citation: 2009 HRTO 469

Indexed as: Perpich v. South Essex Community Council

1The purpose of this Interim Decision is to correct the name of the respondent union, and to deal with the issue of whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of the arbitration proceeding.

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 28, 2008, which alleges that the respondents discriminated against him with respect to employment because of his disability. The respondent South Essex Community Council (the “respondent council”) and the respondent Canadian Union of Public Employees (the “respondent union”) filed their Responses on March 13 and 18, 2009, respectively. The applicant filed a Reply on April 6, 2009.

3The Application names the respondent union as “CUPE Local 4523”, but the union’s Response identifies its name as “Canadian Union of Public Employees”. The Tribunal orders that the style of cause be amended accordingly.

4The respondent council requests, among other things, that the Tribunal defer consideration of the Application because the matter is the subject of a union grievance that has been referred to arbitration under a collective agreement, and is in the process of being scheduled for a hearing. The respondent union did not request deferral, but states that it filed a policy grievance on November 20, 2008, which raises the applicant’s complaint about a discriminatory workplace policy, and seeks a remedy for all affected employees, including the applicant. The respondent union also states that the matter has been referred to arbitration.

5The applicant does not deny that the matter has been referred to arbitration, but states that he does not trust the respondent union to follow through with the grievance because it was filed almost a year after he first brought the matter to the union’s attention.

6Rule 14.1 of the Tribunal’s Rules of Procedure state that it may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will 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. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

7In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. The applicant did not identify any particular circumstance which would cause the Tribunal to depart from its normal approach. Although it appears that the respondent union filed a policy, rather than an individual, grievance, and it does not raise every allegation that is raised in the Application to the Tribunal, the facts and issues are largely the same. The applicant’s concern that the respondent union will not follow through with the grievance is speculative. Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance.

8Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4). I am not seized of this matter.