Mark Mitchell v. Liquor Control Board of Ontario, 2009 HRTO 641

Human Rights Tribunal of Ontario

Between:

Mark Mitchell Applicant

-and-

Liquor Control Board of Ontario Respondent

Interim Decision

Adjudicator: Judith Keene Date: May 15, 2009 Citation: 2009 HRTO 641 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.

2On April 15, 2009, the Tribunal issued an Interim Decision (2009 HRTO 444) seeking written submissions on the issue of deferral. The respondent made submissions. The applicant's union, the Ontario Public Service Employee's Union ("OPSEU") did not make submissions. The applicant responded to the respondent's submissions. This Interim Decision deals with the issue of whether the Tribunal should defer the Application pending the resolution of grievances.

3The respondent states that the applicant has filed five grievances that deal with the violations of the Code alleged in this Application, and that all have gone through Stage 2 without resolution. Two of the grievances have been referred to Stage 3 at this point. The respondent notes that if the grievances are not resolved at Stage 3, the applicant may refer them to the Crown Employees Grievance Settlement Board (the "GSB"). The respondent also argues that, to the extent that the Application raises other issues and violations of the Code, they can and should be dealt with as grievances. The GSB is empowered to deal with violations of the Code under s. 48(12)(J) of the Labour Relations Act.

4The respondent reiterates that the applicant is being allowed to perform dialysis at work, and is therefore suffering no irreparable harm. Moreover, the Collective Agreement sets timelines for the processing of grievances, which the respondent submits ensures that the grievances will be processed in a timely manner.

5The applicant states that the respondent has "duplicated" grievances – apparently one or two of the grievances were re-filed by OPSEU as the originals were not in the proper form. However, the applicant does not deny that the subject matter of his grievances and this Application are the same. The applicant has been performing dialysis at work since March 2, 2009, but he states that he must use an unpaid lunch break for the process, and that, therefore, he has little or no time to eat lunch. The applicant states that the respondent has taken the position that if he needs extra time to eat lunch, that time will not be paid time.

6The applicant acknowledges that the Collective Agreement sets timelines for grievance processing to Stage 3, but points out that there are no timelines for the GSB process.

7The Tribunal usually defers an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues, although the Tribunal must also consider, in light of particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application. In this case, the parties have not identified any circumstances that would cause the Tribunal to depart from its normal approach. The facts and issues raised by this Application are part of a grievance process that is in progress. 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, 2003 SCC 42).

8The Tribunal orders the deferral of the Application pending the conclusion of the grievance process. After the conclusion of the arbitration, (or if the grievances are not referred to arbitration) the applicant may wish to proceed with this Application. Where 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).

9I am not seized of this matter.