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Human Rights Tribunal of Ontario
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**B E T W E E N:**
Christopher Gullins
Applicant
-and-
Ken Gorman, Laura Freeland and Laura Gertsen
Respondents
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**INTERIM DECISION**
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**Adjudicator:** Mary Truemner
**Date:** June 1, 2010
**Citation:** 2010 HRTO 1226
**Indexed as:** Gullins v. Gorman
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## Intent to Defer
[1] This is an Application filed on September 1, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges reprisal and discrimination in employment on the basis of disability. This Interim Decision deals with the Tribunal’s Notice of Intent to Defer the Application pending the outcome of a grievance proceeding.
[2] The Application indicates that the facts of the Application are part of another proceeding, a union grievance, which is still in progress. The applicant submitted Grievance 2009-HD-01 which includes allegations made in his Application. The Tribunal therefore issued a Notice of Intent to Defer to the parties and to the applicant’s union, requesting submissions on whether it is appropriate to defer the consideration of the Application pending the resolution of the grievance.
[3] The union and the respondents responded to the Notice of Intent to Defer with submissions, supporting the deferral of the Application. The respondents clarified that there are two grievances filed on behalf of the applicant: Grievance 2009-HD-01 as mentioned in the Application; and Grievance 2009-HD-03, a copy of which was enclosed with their submissions. The latter grievance alleges that the municipal corporation for which the respondents work “failed to accommodate the grievor to the point of undue hardship.” That grievance also requests a return to the workplace with modifications as per the applicant’s physician’s recommendations.
[4] The applicant did not respond to the Notice of Intent to Defer.
## Decision
[5] Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative. 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.
[6] Deferral of an application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject-matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them: [Klein v. Toronto Zionist Council, 2008 HRTO 189](https://www.minicounsel.ca/hrto/2008/189).
[7] 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.
[8] In this case, one of the issues that will be addressed in the arbitration hearing is that the respondent is not accommodating the applicant's disability. This appears to be the primary issue in the Application. Accordingly, there is a significant overlap of facts and human rights issues in the grievance proceedings and the Application, which makes deferral appropriate. I am also satisfied that some of the remedies being sought in the Application, including compensation for monies lost during suspension and reimbursement of sick time and vacation time, may be provided by grievance arbitrators. 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](https://www.minicounsel.ca/scc/2003/42)).
[9] Given the significant overlap of facts and issues in the grievance proceeding and the Application, and given a grievance arbitrator’s responsibility to implement and enforce the Code, the Application is deferred.
[10] Following the conclusion of the grievance procedure, the applicant may seek to bring the Application back on before the Tribunal. In that situation, the applicant should follow Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure (available on our website, www.hrto.ca).
[11] I note that there are outstanding preliminary issues raised by the respondents, including the issue of timeliness. These issues will be dealt with when and if the Application proceeds after the conclusion of the grievance procedure.
[12] I am not seized.
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Dated at Toronto, this 1<sup>st</sup> day of June, 2010.
“Signed By”
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Mary Truemner
Vice-chair
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minicounsel