HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steven Matthews

Applicant

-and-

City of Hamilton, Marg Creen, Libby Di Giandomenico, Ryan Fletcher, Hart Solomon, Helen Hale Tomasik, and Martin White

Respondents

-and-

Canadian Union of Public Employees and its Local 5167

Intervener

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: January 26, 2010

Citation: 2010 HRTO 167

Indexed as: Matthews v. Hamilton (City)

1The applicant filed an Application with the Tribunal alleging discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Similar allegations were also made in a union grievance filed on behalf of the applicant.

Background

2The Tribunal issued a Notice of Intent to Defer (“Notice”) and invited submissions from the applicant, the respondent and the Canadian Union of Public Employees and its Local 5167 (“Union”) by November 30, 2009.

3The respondents filed submissions in response to the Notice and also filed a Response. The respondents request an early dismissal of the Application, arguing that the grievance has appropriately dealt with the substance of the Application. In the alternative, the respondents submit that it is appropriate to defer the Application in the circumstances.

4The respondents state that the subject matter of the grievance is identical to that of the Application. They state that while the grievance has not been referred to arbitration, an arbitration pursuant to the collective agreement (rather than a proceeding before the Tribunal) is the appropriate venue for addressing the issues raised in the Application.

5Neither the Union nor the applicant have filed submissions in response to the Notice of Intent to Defer. The Union has, however, filed a Request to Intervene.

Analysis

Union’s request to intervene

6The Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 that:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

7I am satisfied that the Union has the requisite interest in this Application. The Union is granted leave to intervene.

The Respondents’ Request to Dismiss

8Pursuant to 2008 amendments to the Code, the Tribunal will not dismiss an application simply because a grievance process has been initiated regarding the same issues; such circumstances are usually addressed through a deferral.

9Requests to Dismiss are treated under section 45.1 of the Code, which states:

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. It is clear that the grievance process has not reached a conclusion and no longer apply and the Tribunal generally deals with grievances through a deferral.

10It is clear from the respondents’ own submissions that the grievance proceeding has not reached a conclusion. It cannot be said that the grievance has “appropriately dealt with the substance” of the Application.

11The Request to Dismiss is denied.

Deferral

12The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. This is because 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. See Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970.

13Based on the material before me, I am satisfied that the facts and issues raised by this Application are part of the grievance process. In the circumstances, the Application is deferred pending the completion of the grievance and arbitration process.

14I am not seized of this matter.