HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ajit Gill

Applicant

-and-

Connie Griffioen, David Worby, Doug Gilmer, Michael Oliverio

and Rise Mattson

Respondents

B E T W E E N:

Ajit Gill

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Children and Youth Services, Her Majesty the Queen in Right of Ontario as represented by the Ministry of Government Services, Ann D’Hondt, Anne Stark, Connie Griffioen, Dave Worby, Doug Gilmer, Michael Oliverio

and Rise Mattson

Respondents

interiM DECISION

Adjudicator: Alison Renton

Date: October 6, 2010

Citation: 2010 HRTO 2040

Indexed as: Gill v. Ontario (Children and Youth Services)

[1] The applicant filed two Applications under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), one dated March 10, 2010 (which is the subject matter of file 2010-05120-I) and the other dated March 22, 2010 (which is the subject matter of file 2010-05174-I). This Interim Decision deals with the issue of whether the Applications should be deferred pending the completion of a related grievance proceeding. While the Applications have not been consolidated, I find it appropriate to address the issue of deferral together.

[2] In file 2010-05120-I, the applicant alleges discrimination on the ground of disability in employment and specifically in relation to his return to work and discipline he received following his return to work. He alleges that the respondents failed to accommodate him and recognize his medical restrictions. It appears from the material attached to the Applications that the individually named respondents include supervisory and human resources staff.

[3] The applicant is a unionized employee and represented by Ontario Public Service Employees Union (“the union”). He filed a number of grievances following his return to work, including grievances alleging the employer failed to accommodate him and discriminated against him because of a disability in violation of the collective agreement and the Code and wrongfully disciplined him by not taking into account his medical restrictions.

[4] In file 2010-05174-I, the applicant alleges reprisal in employment after he filed his Application.

[5] The Tribunal sent the parties and the union a Notice of Intent to Defer dated July 8, 2010 in both files indicating that it may be appropriate in the circumstances to defer the Applications pending resolution of the grievances.

[6] The respondents in both files filed submissions advising that the applicant filed 10 grievances in relation to his return to work and up to July 14, 2010. Some of those grievances were appended to the respondents’ submissions. The respondents request that the Tribunal defer the Applications pending resolution of the grievances. With the exception of the grievances that were filed on May 21 and July 14, 2010 which are still going through the grievance procedure, the remaining grievances have been referred to the Grievance Settlement Board, a board statutorily created to hear all grievances that are scheduled for arbitration by the employer and the union.

[7] The union observed, in its submissions, that the grievances and the Applications raise substantially similar issues. It stated that that it takes no position on whether or not the Applications should be deferred. Up to April 15, 2010, the applicant filed 7 grievances pertaining to his back to work situation. The union anticipated that it will seek consolidation of all the applicant’s grievances for arbitration at the Grievance Settlement Board at the next joint file review meeting with the employer.

[8] The applicant filed submissions opposing the deferral. He submitted that the grievance meetings for the outstanding grievances are being delayed because he continues to be suspended and that the respondents’ conduct continues.

[9] On August 24, 2010 the Tribunal sent the parties and the union correspondence seeking information on whether the grievances had been addressed at the joint file review meeting with the employer and the union at the Grievance Settlement Board, and if so, what the current status of the grievances was and any change to the parties’ positions regarding deferral.

[10] The union and the applicant responded to the Tribunal’s correspondence, but the remaining respondents did not and the time for doing so has passed.

[11] The union advised that the applicant’s grievances are scheduled for mediation-arbitration on November 18, 2010 and stated that there was no change in its position on the deferral issue. The applicant advised that seven of his grievances have been scheduled for arbitration on November 18, 2010, although he did not identify which grievances those were. He stated that three grievances that were discussed at Stage 2 on August 16, 2010 were denied and have been forwarded to arbitration, but no hearing date has been set. Two other grievances are yet to be heard for Stage 2 of the grievance procedure. He reiterated his position that his Application not be deferred.

[12] The 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 of 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.

[13] The 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](https://www.minicounsel.ca/scc/2003/42)).

[14] The 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.

[15] In this case, it is apparent that there is a substantial overlap between the facts and the human rights issues covered by these Applications and those referred to in the grievances. His grievances are still outstanding, and many have been referred to mediation-arbitration before the Grievance Settlement Board for November 18, 2010. If the applicant believes, on conclusion of the grievance process, that his human rights issues have not been adequately addressed, he may ask to have his Applications brought back on before the Tribunal.

[16] The Applications will therefore be deferred pending the completion of the grievance process. A copy of this Interim Decision will also be sent to the union.

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

[18] I am not seized of this matter.

Dated at Toronto, this 6^th^ day of October, 2010.

“signed by”

Alison Renton

Vice-chair