Walter Rudnicki v. Liquor Control Board of Ontario and Carla McRae, 2010 HRTO 1980

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Walter Rudnicki

Applicant

-and-

Liquor Control Board of Ontario and Carla McRae

Respondents

INTERIM decision

Adjudicator: Brian Eyolfson

Date: September 28, 2010

Citation: 2010 HRTO 1980

Indexed as: Rudnicki v. Liquor Control Board of Ontario

1This is an Application filed on May 11, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of family status in employment. The applicant alleges that he was not accommodated based on family status, and seeks to be relieved of his afternoon shifts until his parental obligations change. He also indicated that the facts of his Application are part of a union grievance proceeding that is still in progress.

2On July 20, 2010, the respondents filed a Response to the Application. In their Response, the respondents request that the Application be deferred pending the resolution of the grievance proceeding.

3The respondents submit that, in or around January 2010, the shift rotation at the store at which the applicant works was changed. All eight of the Permanent Full-time Customer Service Representatives (“PFT CSRs”) at the store, including the applicant, challenged the rotation decision and filed a complaint letter at Stage 1 of the grievance procedure. This complaint letter sets out a list of concerns, including “Duty to Accommodate (family reasons)”. The eight PFT CSRs, including the applicant, subsequently filed grievances. The respondents provided a copy of the applicant’s grievance, dated April 7, 2010, alleging an abuse of management rights and seeking to be made whole in all respects. The respondents submit that the particular allegations upon which the applicant’s grievance is based are set out in a Stage 2 letter, which reiterates the issues in dispute, including “Duty to Accommodate (family reasons)”. The respondents submit that the applicant’s grievance is currently waiting to be scheduled for a Stage 3 meeting and if the grievance is not resolved at Stage 3, the union and the applicant may refer the grievance to the Grievance Settlement Board (“GSB”).

4The applicant filed a Reply, opposing deferral. The applicant submits that the time limits for Stage 3 have expired, the Grievance Committee is backlogged and a hearing at the GSB has not yet been scheduled. The applicant believes that this matter could be dealt with sooner at the Tribunal.

5Along with his Reply, the applicant filed a Request to Expedite Proceedings, a Request for Interim Remedy, and a Request for an Order During Proceedings (“RFOP”), requesting particulars and production. The respondents subsequently filed an RFOP, concerning the naming of individual respondents, and the applicant filed a further RFOP, seeking to add a party and to amend his Application.

REQUEST TO EXPEDITE

6The Tribunal’s Rules of Procedure provide for applications to be dealt with in an expedited manner in urgent circumstances. Rule 21.1 provides that an applicant may request that the Tribunal deal with an application on an expedited basis in circumstances which require an urgent resolution of the issues in dispute. Rule 21.2 requires an applicant seeking an expedited application to identify any urgent circumstances that may affect the fair and just resolution of the merits of the application and the harm that would result if the request is denied.

7In his Request to Expedite, the applicant expresses concern that a new school year is commencing and a hearing at the GSB has not been scheduled. With respect to the harm that would result if the request is denied, the applicant provides quotes from a social worker that explain, among other things, that some children who do not have adequate time with their parents are at risk of unproductive behaviour that could eventually lead, at worst, to self-destructive behaviours. With respect to the requirement in the Tribunal’s Rules to provide one or more signed declarations in support of a request to expedite, the applicant provided a copy of a letter from a doctor which simply states that the applicant is “unable to work evenings from August 3 to September 3, 2010, due to a medical condition in a family member requiring his care.”

8The respondents provided a Response to the Request to Expedite Proceedings. They submit that the applicant has failed to allege any harm or, at the very lest, any sufficient harm, that he would suffer if the request is denied. In the alternative, they submit that the applicant has been aware since on or about May 18, 2010, that his request for accommodation was being denied in the circumstances. They submit that the applicant has had over three months to arrange for evening and weekend child care prior to the start of the school year.

9In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at para. 9 the Tribunal held that, for a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.

10In Ebrahimi v. Durham District School Board, 2009 HRTO 1062, the Tribunal noted that another basis for expediting an application may be where a requested (and arguably appropriate) remedy will be moot, or unavailable, without expediting an application.

11Having reviewed the materials, I cannot conclude that this Request to Expedite meets the high threshold required by the Tribunal’s jurisprudence. In my view, the applicant has not adequately explained why there are urgent circumstances that may affect the fair and just resolution of the merits of the Application if the request is denied. While I do not doubt the sincerity of the applicant’s concerns regarding his children, the concerns identified by the applicant appear to be rather speculative. In addition, the applicant has not submitted facts that are more urgent than those in many other applications that the Tribunal receives. In the circumstances, I cannot conclude that this Application should be given priority over other matters. The Request to Expedite this Application is denied.

DEFERRAL

12The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

13The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that 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 (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

14The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

15In this case, it appears that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The matter is still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant’s grievance will be referred to arbitration. If the matter is referred to arbitration, the arbitrator will have the ability to address the human rights aspect of the applicant’s grievance. If the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

16The Application will therefore be deferred pending the completion of the grievance process.

17The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.

18In light of the reasons favouring deferral, in the circumstances of this case, it would not be appropriate for the Tribunal to determine the Request for Interim Remedy. Interim remedies are generally awarded in anticipation of a hearing on the merits by the Tribunal, and in this case it would not be appropriate for the Tribunal to award interim relief where the application is being deferred to another proceeding: Loranger v. Customs and Immigration Union, 2008 HRTO 432 and Mitchell v. Halton Condominium Corporation #499, 2010 HRTO 1507.

19The parties’ remaining RFOPs can be dealt with if and when this matter is brought back on before the Tribunal.

20I am not seized.