Weir v. Ontario (Community Safety and Correctional Services) (No. 2)
2009-03497-I
2010-08-11
2010 HRTO 1664
HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dave Weir
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Service
Respondent
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: Weir v. Ontario (Community Safety and Correctional Services)
The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code") in which he alleges discrimination in the context of employment on the basis of disability. The applicant also alleges reprisal or threat of reprisal. In essence, the applicant is alleging that the respondent discriminated against him by failing to facilitate his return to work following a period of disability.
The respondent filed a Request for an Order During Proceedings ("Request") seeking the deferral of the Application pending the outcome of grievance proceedings. The respondent has also asked for an order deferring the filing of the Response. The respondent states that the applicant has filed a number of grievances based on the same facts and issues as the Application.
The applicant has not responded to the Request and the time for doing so has elapsed.
The applicant's union, the Ontario Public Service Employees Union ("Union"), filed a Request to Intervene. The Union stated that the relief requested in the Application may affect the operation of the collective agreement and members' rights under the agreement. The Union also indicated that it may wish to make submissions regarding the deferral issue.
In an earlier Interim Decision, 2010 HRTO 1043 [CHRR Doc. 10-1233], the Tribunal granted the Union's Request to Intervene and invited submissions from the Union regarding deferral.
Respondent's request to reconsider the Interim Decision
In the earlier Interim Decision, the Tribunal indicated that neither the applicant nor the respondent had responded to the Union's Request to Intervene. In fact, however, the respondent had responded to the Request to Intervene but this response had not been brought to the attention of the Vice-chair at the time the Interim Decision was rendered.
In its Response to the Request to Intervene, the respondent indicates that it does not oppose the Union's Request to Intervene, but asks the Tribunal to determine its Request for a Deferral before making a decision regarding the Request to Intervene. The respondent also reserved the right to make submissions regarding the scope of the Union's intervention.
The respondent has asked the Tribunal to reconsider the Interim Decision in light of its Response to the Request to Intervene.
Pursuant to its Practice Direction on Reconsideration, the Tribunal does not reconsider a decision that is not final. However in the circumstances, I have reviewed and carefully considered the Response to the Request to Intervene. In my view, there is no basis to interfere with the earlier Interim Decision. Even had the Tribunal reviewed the respondent's Response to the Request to Intervene, I believe it would have reached the same conclusion.
First, even if the Union's Request to Intervene had not been addressed in advance of the Tribunal determining the respondent's Request, the Tribunal might have sought submissions from the Union on the deferral issue (see Rule 14.2).
Second, the Tribunal's Interim Decision, while granting the Request to Intervene, does not address the scope of the intervention. This may be addressed at the hearing of the matter and the parties will have an opportunity to make submissions at that stage.
Accordingly, I see no basis to interfere with the conclusions reached in the earlier Interim Decision.
Request to Defer
The respondent has requested the deferral of the Application. It also seeks an order deferring the filing of a Response.
The respondent submits that the applicant has filed grievances, which have been referred to arbitration and which relate to substantially the same subject-matter as the Application. The Union has filed submissions in support of the Request to Defer, stating that the grievances cover the issues raised in the Application.
The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.
I have reviewed the grievances and find that they are based on the same facts and issues as the Application. Both relate to the respondent's alleged failure to accommodate the applicant's disability.
The applicant argues that, notwithstanding the overlap between the grievances and the Application, it is appropriate for the Application to proceed. He writes of delays in the grievance procedure and seeks a more expeditious process before the Tribunal. The applicant also suggests that the grievance procedure favours the respondent.
The respondent argues that there have been no particular delays in the grievance procedure in this case. It states that the grievance procedure provided for in the collective agreement is an appropriate means of addressing the issues raised in the grievances.
Based on the materials filed with the Tribunal, I conclude that there is significant overlap in the subject matter of the Application and that of the grievance. In the circumstances, I am not satisfied that it is appropriate to deviate from the Tribunal's usual practice of deferring applications pending the completion of the grievance proceeding based on the same facts and issues.
Accordingly, the Application is deferred pending the outcome of the grievance proceeding. The deadline for filing the Response is suspended pending the reactivation of the Application with the Tribunal.
The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the grievance proceeding has concluded.
I am not seized of this matter.