Chaoming (Henry) Liao v. University Health Network, 2010 HRTO 1348

Human Rights Tribunal of Ontario

Between:

Chaoming (Henry) Liao Applicant

-and-

University Health Network and Darrell Galang Respondents

Interim Decision

Adjudicator: Eric Whist Date: June 15, 2010 Citation: 2010 HRTO 1348 Indexed as: Liao v. University Health Network

1The 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 129, 2009 alleging discrimination in employment on the grounds of disability.

2On April 15, 2010 the respondents filed their Response in which they requested that the Application be dismissed or deferred. On May 15, 2010 the respondents reiterated these requests in a Request for an Order During Proceedings (“Requests”). This Interim Decision addresses these Requests made by the respondents.

Background

3The applicant was employed as a maintenance electrician by the University Health Network (the “corporate respondent”). In February 2008 he was injured on the job. The applicant, has been represented at all material times by CUPE Local 5001 (the “Union”). In November 2008 he filed a grievance (Grievance HG November 21, 2008) on the basis that he had not been returned to his original position as an electrician despite not having any permanent physical restrictions. It appears that in April 2009 he was placed in a permanent alternate (modified) position as an electrician, a position the applicant did not find suitable. A mediator was subsequently used in an effort to resolve the applicant’s grievance.

4On July 6, 2009 the corporate respondent, the applicant and the Union signed an Interim Agreement in relation to the applicant’s grievance. This agreement states that the corporate respondent will contact the specialist who treated the applicant after his workplace injury and if the specialist indicates that there are no restrictions to prevent the applicant from returning to his previous maintenance electrician position the corporate respondent will return him to that position. The interim agreement indicates that the mediator who helped the parties arrive at the settlement “will remain seized of this matter until full settlement of the issue occurs”.

5According to the respondents a further mediation was attempted in November 2009 which did not resolve the grievance and the applicant’s grievance is now proceeding to arbitration.

6The respondents request that the Application be dismissed on the basis that the substance of the Application has been appropriately dealt with by the interim agreement dated July 6 2009 and by the fact that the applicant has been working as a full-time electrician since April 6, 2009. In the alternative, the respondents request that the matter be deferred in light of the fact that the applicant’s grievance is now proceeding to arbitration.

7The applicant opposes the respondents’ Requests. The applicant submits that the corporate respondent has failed to meet its commitments under the interim agreement and has not appropriately dealt with his interest in returning to his previous position. The applicant states that he wishes the Tribunal to process his Application immediately instead of deferring to the arbitration process. The applicant does not believe that the respondent has the intention of resolving his case fairly or in time.

Decision

8The respondent’s request to dismiss is a request under section 45.1 of the Code. Section 45.1 provides that:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

9I have considered the parties’ submissions and decline to exercise my discretion to dismiss the Application on the basis of section 45.1. I find that the interim nature of the agreement reached by the corporate respondent and the applicant in July 2008 means that it is not a proceeding within the meaning of section 45.1. This agreement is only an interim step in the grievance process which has not decided or resolved the applicant’s grievance. The applicant’s grievance continues. There are no minutes of settlement. There is no arbitrator’s decision, final settlement or other resolution relating to all or part of the issues raised in this Application.

10In determining whether to defer an Application the Tribunal must consider, in light of the particular circumstances, whether deferral is the most fair, just and expeditious way of proceeding with the Application

11The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. In this case an arbitration will be held to deal with the same allegations as raised in the Application. It will take place before a decision maker with appropriate remedial authority. Consequently, I am of the view that the Application should be deferred until the grievance process is concluded. It may be that the applicant would prefer to proceed with his Application at the present time but to proceed with the Application at this time would be an inefficient and inappropriate use of the resources of the Tribunal and the parties. A deferral also avoids the problem of two concurrent proceedings making inconsistent findings of law or fact.

12The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline the process by which an Application may be re-activated after being deferred. 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.

13I am not seized of this matter.