Ken Leblanc v. City of Toronto, 2009 HRTO 573

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ken Leblanc

Applicant

-and-

City of Toronto

Respondents

-and-

Toronto Civic Employees’ Union, Local 416, CUPE

Intervenor

INTERIM DECISION

Adjudicator: Sherry Liang

Date: May 5, 2009

Citation: 2009 HRTO 573

Indexed as: Leblanc v. Toronto (City)

1This is an Application filed on December 19, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). This Interim Decision deals with a Request to Intervene and also seeks submissions on deferral of the Application.

2The applicant is a seasonal worker with the City of Toronto (the City). He alleges discrimination and harassment in employment on the grounds of disability and age. He states that on October 28, 2008, he was laid off prematurely. He also alleges that each year since 2005-2006, he has been denied the opportunity for seasonal winter work, for which he requires accommodation because of a disability.

3As remedy, the applicant requests damages to compensate him for lost wages over four winter seasons, damages for emotional distress, and punitive damages.

REQUEST TO INTERVENE

4The applicant is represented in his employment by the Toronto Civic Employees’ Union, Local 416, CUPE (the Union), which has filed a Request to Intervene in this Application. Specifically, the Union requests that it be copied with all material filed by the parties, that it be advised of and be allowed to be in attendance at any mediation, that it be allowed to make submissions if there is a request to defer this Application to the grievance and arbitration process, and that it be allowed to make submissions with respect to the operation and interpretation of the collective agreement.

5The applicant and the respondent have both consented to the Union’s participation in the Application.

6The Tribunal grants leave to the Union to intervene in the Application.

DEFERRAL OF THE APPLICATION

7The parties are agreed that at least some of the facts of this Application are part of union grievances that are still in progress. They do not necessarily agree about the extent of the overlap between this Application and the grievances but from the materials in the file, it appears to be substantial. It appears that since 2005, the applicant has filed several grievances alleging denial of winter work opportunities and the failure to accommodate for the purpose of winter work.

8In the applicant’s materials, he refers to an arbitration meeting of February 10, 2009, in which it appears some efforts were made to resolve the applicant’s grievance(s), without success. The applicant states that “no more meetings” have been scheduled pending the outcome of Tribunal mediation.

9None of the parties have requested deferral of this Application. Nevertheless, the Tribunal will consider whether deferral is appropriate in the circumstances of this case. In Somogyi v. Hamilton (City), 2008 HRTO 342, the Tribunal stated:

8The 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.

9The facts and issues raised by this Application are part of a grievance process that is still in progress. I am not persuaded by the applicant’s submission to the effect that a grievance arbitration is not an adequate forum to determine the human rights issues raised by the applicant. The Supreme Court of Canada has affirmed that 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 [Parry Sound Social Services Administration Board v. O.P.S.E.U., Local 342, 2003 SCC 42]. Further, the fact that an arbitration date has not yet been scheduled is not sufficient reason for the Tribunal to depart from its normal approach.

10The Tribunal requests the parties’ submissions on whether it ought to defer this Application pending the conclusion of the grievances. These submissions should be provided to the other parties and filed with the Tribunal by Tuesday, May 19, 2009.

11The Tribunal also directs the City and the Union to provide, by the same date, copies of any outstanding grievances relating to the applicant, and information about the current status of those grievances.