Leblanc v. Toronto (City), 2009 HRTO 960

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ken Leblanc

Applicant

-and-

City of Toronto

Respondent

-and-

Toronto Civic Employees’ Union, Local 416, CUPE

Intervenor

INTERIM DECISION

Adjudicator: Sherry Liang

Date: July 3, 2009

Citation: 2009 HRTO 960

Indexed as: Leblanc v. Toronto (City)

WRITTEN SUBMISSIONS

) Ken Leblanc, Applicant ) Garry J. Wise, Counsel ) City of Toronto, Respondent ) Amandi Esonwanne, Counsel Toronto Civic Employees’ Union, ) James K. McDonald, Counsel Local 416, CUPE, Intervenor )

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 the issue of whether the Application should be deferred pending the completion of related grievance proceedings.

2The applicant is a seasonal worker with the City of Toronto (the “City”), represented in his employment by the Toronto Civic Employees’ Union, Local 416, CUPE (the “Union”). He alleges discrimination and harassment in employment on the grounds of disability and age. The applicant 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. As remedy, the applicant requests damages to compensate him for lost wages over four winter seasons, damages for emotional distress, and punitive damages.

3In a previous Interim Decision, 2009 HRTO 573, the Tribunal requested submissions from the parties on the issue of deferral. The applicant, the City and the Union have all made written submissions. The Union and the applicant oppose deferral. Although it had not requested deferral of the Application in its Response, the City now supports deferral to the arbitration process.

4Following the previous Interim Decision, the applicant filed a Request for an Order During Proceedings in which he sought production from the Union of all grievances filed on his behalf by the Union since 2005. As these were subsequently produced as part of the Union’s submissions, it is not necessary to address the Request.

SUBMISSIONS OF THE PARTIES

5The submissions received from the parties have clarified the nature and status of the applicant’s grievances. There are three grievances, filed in January 2006, February 2007 and November 2007. In the first, it is alleged that the City failed to accommodate the applicant, contrary to certain articles in the collective agreement and “any legislation that may have relation to the denial of member’s rights”. The second alleges a violation of the collective agreement by not allowing the applicant to select a work opportunity in a manner consistent with the collective agreement. The last grievance alleges that the City violated the collective agreement “by improperly denying the grievor the right to Winter Works Selection/Recalls”.

6Taken together, the grievances cover many of the same events that form the basis of the Application to the Tribunal. The grievances are proceeding separately, and all have been referred to arbitration. The first grievance has been before an arbitrator on two occasions, July 25, 2008, and February 10, 2009. On both occasions, the parties engaged in settlement discussions. At or following the appearance on February 10, 2009 (which came after the applicant filed this Application), counsel for the Union confirmed to the arbitrator that the Union and the City agreed to adjourn the arbitration pending the disposition of the Application. The Union states that the other two grievances have been held “in abeyance” pending the disposition of this Application.

7The City submits that in addition to the alleged violation of Code-based rights (the failure to accommodate), the grievances allege other violations of the collective agreement that derive from the same set of facts and will require exactly the same evidence. The issues in the grievances, which are broader than those in the Application, cannot be litigated without extensive evidence regarding the applicant’s disability and his accommodation.

8The City submits, in essence, that whereas the Tribunal and an arbitrator would both hear evidence about the same set of facts, the Tribunal will only determine the Code-based issues. By contrast, the arbitrator will be dealing with all employment-related issues raised by the grievances, including the alleged violation of the Code. In this context, it asserts that it is preferable to have the Application deferred in order to permit all issues related to the applicant dealt with in one forum, the arbitration.

9The Union states that the grievance arbitration will not deal with the allegations that the City has violated the provisions of the Code for the reason that it does not intend to advance these claims in its presentation of the applicant’s grievances. It states that it has made it clear to the applicant that it does not support this Application to the Tribunal, and it is not prepared to make any argument or lead any evidence at any arbitration that there has been a violation of the Code. Therefore, the Tribunal is the only forum in which the applicant will be able to pursue his allegations that the City has violated the Code.

10The applicant also submits that in the absence of the Union’s support of his human rights issues in the arbitration of his grievances, the Tribunal is the only available avenue to the applicant for the resolution of his complaint of workplace discrimination.

11In the City’s response to the submissions from the other parties, it maintains, among other things, that the most efficient use of juridical resources mandates deferral of the Application so that the arbitrator can adjudicate the grievances. In the event that the alleged failure to accommodate is not dealt with by the arbitrator, the Tribunal may revive its jurisdiction upon notification by the applicant. The City maintains that the Union has not signalled an intention to withdraw the allegations of failure to accommodate in the grievance. Neither has it, or the applicant, put forward concrete, practical ways of severing the accommodation and disability issues from other alleged violations of the collective agreement. In the City’s submission, the other issues in the grievances cannot be litigated without litigating the accommodation and disability issues.

DECISION

12The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

13The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that 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 (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

14The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, Tribunal’s normal approach is to defer to the other proceeding.

15Therefore, the initial consideration for the Tribunal in deciding whether or not to defer to another proceeding is whether the same facts and human rights issues are being raised before another decision-maker with the authority to deal with those issues.

16In the case at hand, it appears that while the Union filed grievances on behalf of the applicant in which it (at least with respect to the first) claims a failure to accommodate as well as violations of the collective agreement, it now takes the position that it does not see merit in the applicant’s claims of discrimination under the Code. As the representative of the applicant in his employment relations with the City, the Union has carriage of those grievances. It has the authority and, indeed, the responsibility, to assess the merits of the claims that it advances to arbitration, and to choose what evidence and legal arguments to put before the arbitrator.

17Whatever may be the merits of its decision, the reality is that the Union does not intend to advance the claim of discrimination before the arbitrator. The result of this is that the applicant’s assertions that the City has discriminated against him, which form the basis of this Application, will not be adjudicated in the grievance arbitration.

18The circumstances of this case are accordingly different from others where the Tribunal has deferred an application because an ongoing grievance under a collective agreement is based on the same facts and human rights issues as those raised in the application.

19This does not end the issue of whether the Tribunal should nonetheless defer to the arbitration process. Where concurrent legal proceedings do not clearly engage human rights issues, but raise facts or issues which overlap with those before the Tribunal, the Tribunal will consider whether to defer based on other factors, such as the subject matter of the other proceeding, its nature, the type of remedies available, the status of the other proceeding and steps that have been taken to pursue it.

20The Tribunal has deferred an application, for instance, where the same facts underlay both a civil action and the application to the Tribunal on the grounds that, although the civil action did not raise human rights issues, it was close to its resolution (Klein v. Toronto Zionist Council, 2008 HRTO 189). Even if the human rights issues will not be resolved by the civil action, if it is at an advanced stage, it may well be fair, just and expeditious to defer the Tribunal’s proceeding.

21In this case, there appears to be an overlap between the facts raised by the grievances and those before the Tribunal. The two proceedings arise out of the applicant’s claim that he was improperly denied the opportunity to obtain certain winter seasonal work, starting in the year 2005-2006. Given the Union’s stated position that it will not advance the claim at arbitration that the denial of work opportunities was discriminatory, it is not clear how significant the factual overlap will turn out to be.

22The grievances have advanced to arbitration, but no hearings have yet been held, nor are any hearing dates currently set. The fact of this Application has, it appears, resulted in a delay to that process. I find that the progress of those arbitration proceedings, and the steps taken to date, neither favours nor weighs against deferral of the Application.

23In its submissions, the City referred to the possibility of having to engage in multiple proceedings on the same set of facts. Given the adjournment of the arbitration and the Union’s intention to allow this Application to be resolved before proceeding with the grievances, the prospect of multiple proceedings appears unlikely. If this Application proceeds to a hearing and then a decision on the merits, an arbitrator subsequently hearing the grievance may decide what effect to give to the Tribunal’s determinations in deciding any remaining issues under the collective agreement.

24In sum, as the human rights issues in this Application will not be raised in the arbitration proceedings, deferral is not warranted on that basis. Further, the other circumstances of the case do not support deferral of the Application to those proceedings.

25I am not seized.