Storey v. Hanover (Town), 2010 HRTO 1830

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darren Storey

Applicant

-and-

The Corporation of the Town of Hanover, Hanover Police Services Board and Tracy David

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: September 7, 2010

Citation: 2010 HRTO 1830

Indexed as: Storey v. Hanover (Town)

INTRODUCTION

1The purpose of this Interim Decision is to address whether the Application should be deferred pending the completion of a misconduct investigation and a grievance proceeding.

BACKGROUND

2The applicant, who is a police constable with the Hanover Police Service (“HPS”), went off work on a disability-related leave in May 2008.

3In May 2009, the applicant requested that he be allowed to return to work, and that the HPS accommodate alleged needs related to his disability.

4In June 2009, the Ontario Provincial Police (“OPP”) began investigating potential criminal misconduct (harassment of another person) by the applicant.

5On November 4, 2009, the HPS issued the applicant a Notice of Investigation, which informed him that he was under investigation for misconduct offences under the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”) in relation to the events that were the subject of the OPP investigation.

6On November 30, 2009, the applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), which alleged that the respondents discriminated against him with respect to employment because of his disability.

7Specifically, he alleged that the respondents stopped paying him and contributing to his pension during a period when he was totally disabled, failed to accommodate his needs related to his disability, and requested and searched for private and privileged medical information about him that went beyond what they needed to know to accommodate his disability-related needs.

8On December 1, 2009, the applicant returned to work, and the HPS then re-issued him the Notice of Investigation and suspended him from duty with pay.

9On December 4, 2009, the applicant filed a Notification of Grievance under the collective agreement between the HPS and the Hanover Police Association (“HPA”), which grieved how he was treated during his disability-related leave, as well as the investigation and suspension.

10The respondents filed separate Responses on February 23, 2010, which all denied the allegations of discrimination.

11The Corporation of the Town of Hanover (the “Town”) requested that the Tribunal dismiss the Application against it because it is not the applicant’s employer.

12The Hanover Police Services Board (“HPSB”) and the Chief of the HPS, Tracy David (“Chief David”), both stated that the applicant was in receipt of all benefits conferred by the collective agreement to which he was eligible, and that they were willing to accommodate the applicant’s needs related to his disability, but the accommodation process was impeded by the OPP investigation into potential criminal misconduct by the applicant, and the applicant’s failure to submit medical information that showed that he was fit to return to his duties as a police officer.

13The HPSB and Chief David also both requested that the Tribunal defer the Application until the misconduct investigation and the grievance proceeding are completed.

14The applicant filed a Reply on April 1, 2010, which only addressed the request to defer the Application. He stated, among other things, that his grievance was being held in abeyance.

15The Tribunal issued an Interim Decision, 2010 HRTO 952, dated April 30, 2010, which requested written submissions from the HPA, as well as replies from the HPSB and Chief David to the applicant’s Reply and the HPA’s submissions, on whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of the grievance proceeding.

16The HPA filed submissions, but the HPSB and Chief David did not. The applicant filed unsolicited submissions.

SUBMISSIONS

17In their Responses, the HPSB and Chief David submitted that the Tribunal should defer the Application pending the results of an investigation into the applicant’s potential misconduct charges under the PSA because the investigation, the investigation report, and the ensuing proceedings, if any, will fully canvass the issues in the Application, including the applicant’s ability to return to work as a police officer between June and December 2009.

18In the alternative, the HPSB and Chief David submitted that the Tribunal should defer the Application pending the completion of the grievance proceeding because the grievance covers the same facts and timeframe as the Application. They stated that the current status of the grievance is that Chief David denied it at step one on December 4, 2009, and since then, neither the applicant nor the HPA has advanced it any further, but it has not been withdrawn.

19In his Reply, the applicant opposed the deferral of his Application pending the results of the misconduct investigation under PSA because an investigation is not a proceeding, and may not lead to charges let alone a hearing; the applicant’s position is that the investigation is a reprisal for pursing his rights under the Code; and any subsequent hearing under the PSA will only be able to address his alleged misconduct and the penalties that may imposed on him, not whether the respondents discriminated against him and how the discrimination should be remedied.

20The applicant also opposed the deferral of his Application pending the completion of the grievance proceeding because Chief David denied that the grievance existed, and since then, the HPS and the HPA have agreed to hold the grievance in abeyance.

21In its submissions, the HPA did not take a position on whether the Tribunal should defer the Application pending the completion of the grievance proceeding, but agreed with the applicant that Chief David denied that the grievance existed. The HPA also stated that it advised Chief David that the grievance would be held in abeyance pending the results of the misconduct investigation under PSA.

ANALYSIS

22Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative or at the request of any party. The 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.

23In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

Deferral 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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

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.

24In my view, deferral is not the most fair, just and expeditious way of proceeding with the Application. Although there is some overlap in issues between this Application and the misconduct investigation under the PSA, the latter is only at the investigation stage, and may not lead to charges or a hearing. Furthermore, the focus of any hearing under the PSA will be on the applicant’s alleged misconduct and any applicable penalties, not whether he was discriminated against and what human rights remedies he would be entitled to if he was. With respect to the grievance proceeding, the applicant and the HPA’s uncontradicted submissions are that the grievance is being held in abeyance.

25The HPSB and Chief David’s request for deferral of the Application is therefore dismissed.

NEXT STEP

26The next step is to address the Town’s request that the Tribunal dismiss the Application against it because it is not the applicant’s employer. On the face of the Application, there are no specific allegations that the Town discriminated against the applicant, or that the Town is vicariously responsible for acts of discrimination by its employees or the other respondents. The applicant is directed to deliver to the other parties and file with the Tribunal written submissions on this issue within two weeks of the date of this Interim Decision, or alternatively, file a Request to Withdraw (Form 9) the Application against the Town.

27I am not seized of this matter.