Stoyle v. Ontario (Community and Social Services), 2010 HRTO 1882

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Stoyle

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Minister of Community and Social Services and the Minister of Children and Youth Services

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: September 15, 2010

Citation: 2010 HRTO 1882

Indexed as: Stoyle v. Ontario (Community and Social Services)

WRITTEN SUBMISSIONS BY

James Stoyle, Applicant ) On his own behalf

Her Majesty the Queen in Right of Ontario )

as represented by the Minister of Community ) Susan Munn, Counsel

and Social Services and the Minister of )

Children and Youth Services, Respondent )

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination on the basis of disability in the context of employment. It also alleges reprisal or threat of reprisal.

2In essence, the Application alleges that the respondent failed to accommodate his disability.

3The applicant has also filed a grievance under a collective agreement alleging discrimination under the Code.

4On July 16, 2010, the Tribunal issued a Notice of Intent to Defer (“Notice”), indicating that it may be appropriate to defer consideration of the Application pending the resolution of the grievance. The Tribunal invited submissions on the deferral issue from the applicant, the respondent and the Ontario Public Service Employees Union (“Union”).

5The Union and the respondent have filed submissions in response to the Notice.

6The applicant submits that deferral is not appropriate in the circumstances. He acknowledges that the grievance and the Application raise substantially similar factual and legal issues but argues that the public interest remedies sought in the Application are outside the scope of the grievance. He also expresses concerns that the respondent has not acted in good faith and has not facilitated the grievance process.

7The respondent and the Union both submit that a deferral is appropriate. The applicant’s grievance has been referred to arbitration and hearing dates will be selected at a meeting in October, 2010.

DECISION

8Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure (“Rules”).

9Rule 14.1 of the Rules states:

The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

10The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also 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.

11Deferral 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.

12There is no dispute that, in this case, many of the facts and issues raised by this Application are part of an ongoing grievance process. Although the Application may seek public interest remedies that have not been raised in the grievance process, I am not satisfied that this is a reason to proceed with the Application in the circumstances. I note that grievance arbitrators have the ability to implement and enforce the substantive rights and obligations of human rights: See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

13The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which a party may request that the Application proceed once the grievance proceeding is complete.

14I am not seized of this matter.