Glaus Napash v. URS Canadian Operations Ltd., 2010 HRTO 1622

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Glaus Napash

Applicant

-and-

URS Canadian Operations Ltd.

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: July 29, 2010

Citation: 2010 HRTO 1622

Indexed as: Napash v. URS Canadian Operations

BACKGROUND

1The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on December 11, 2009 alleging discrimination and reprisal in employment on the basis of disability. The applicant alleges that the respondent discriminatorily sought to subject him to drug and alcohol testing after he accidentally damaged company property. The applicant alleges that he was dismissed because he refused to undergo the alcohol and drug testing, which he believed violates his human rights.

2The respondent filed a Response on April 9, 2010, denying that it discriminated against the applicant. The respondent alleges that the applicant’s employment was terminated because he refused to comply with the company’s alcohol and drug policy. In its Response, the respondent requested early dismissal of the Application because the Employment Insurance Commission and the Board of Referees had appropriately dealt with the substance of the Application. The respondents relied on the fact that the Board of Referees rendered a decision upholding the Employment Insurance Commission’s decision to deny the applicant benefits on the basis that the applicant’s employment was terminated due to his own misconduct.

3In Interim Decision 2010 HRTO 1281, the Tribunal dismissed the respondent’s request for early dismissal finding that the applicant’s allegations of disability discrimination had not been dealt with appropriately by the other proceeding. The Tribunal directed the applicant to provide updated information regarding status of his employment insurance benefits appeal before the Office of the Umpire. The parties were also directed to file submissions on the question of whether the Application should be deferred until the Umpire appeal process has been completed.

PARTIES’ SUBMISSIONS

4The applicant advised that an appeal to the Umpire was filed in August 2009. In November 2009, the applicant sought and was granted an adjournment of his appeal because of his current Application before the Tribunal. The applicant notes that new counsel with carriage of his Umpire appeal file wrote the Office of the Umpire in March 2010 seeking a hearing date for the appeal. The applicant submits that it is not clear why the appeal was re-activated; however, there has been no response from the Office of the Umpire and no hearing was scheduled. The applicant indicates that on June 29, 2010, he requested another adjournment of the Umpire appeal so that his Application can proceed before the Tribunal. The applicant submits that he has requested the Umpire appeal be adjourned specifically to allow his Application to proceed without any risk of concurrent proceedings or inconsistent findings of fact or law.

5The respondent asserts that the chronology reveals that, but for the applicant’s second request for adjournment, the Umpire appeal would have proceeded in due course. The respondents point out that the applicant’s correspondence with the Office of the Umpire describes the Tribunal Application as “a similar proceeding”. The respondent argues that the applicant’s adjournment of the Umpire hearing is improper and seeks to avoid the Umpire determining the same factual and legal issues as those before the Tribunal. The respondent submits that the Tribunal should defer the Application as long as the applicant’s appeal to the Umpire remains outstanding.

DECISION

6The Tribunal will 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.

7Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Some factors that have been identified as 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 types 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404. Deferral is not automatically indicated simply because the parties or facts underlying the Application are also involved in the other proceeding. See Calabria v. DTZ Barnicke, 2008 HRTO 411 and Baghdasserians, supra.

8In my view, the factors do not weigh in favour of deferral. While it appears that the Umpire appeal arises out of the same events that underlie the subject matter of this Application, it is not clear from the material before me that the Umpire will address the human rights allegations or issues.

9It is also clear from the parties’ submissions that the Umpire process has not advanced since the appeal was initially filed in August 2009 and it is uncertain when a hearing would be scheduled. While the respondents take objection to the applicant’s efforts to adjourn that hearing, those submissions are properly made to the Umpire, rather than to the Tribunal. Since there does not appear to be any hearing pending there is no reason to defer. As such, in these circumstances, deferral is not appropriate.

CONCLUSION

10Given that both the applicant and the respondent have indicated a willingness to participate in mediation, the Registrar’s Office will contact the parties in order to schedule a mediation in this matter.

11I am not seized.