Lam v. Commissionaires (Great Lakes), 2010 HRTO 243

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Raymond Lam

Applicant

-and-

Commissionaires (Great Lakes), Phillip Day, Ronald Hobbs,

Dave Gordon and Harold Brown

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: February 2, 2010

Citation: 2010 HRTO 243

Indexed as: Lam v. Commissionaires (Great Lakes)

1This is an Application filed on August 10, 1009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application alleges discrimination in employment on the grounds of disability and family status, arising out of the applicant’s work as a traffic officer at Pearson International Airport.

2The applicant has, through his union the Public Service Alliance of Canada, filed two grievances under the collective agreement between the union and the respondent.

3The respondent asks that the Application be deferred pending the completion of the grievance process. The applicant opposes deferral, stating that although the two grievances are proceeding to arbitration, the Application involves a broader set of circumstances than the grievances.

4On my review of the material before me, while there may be circumstances in the Application that go beyond those that are covered by the grievances, it is apparent that the main events at the heart of both proceedings are the same, relating to the respondent’s decision to remove him from his duties at the airport for a period of time in May 2009.

5The 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.

6The 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).

7The 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.

8In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievances.

9The Application will therefore be deferred pending the completion of the grievance process.

10The 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.

11I am not seized of this matter.