Patus v. Youth Resources Niagara, 2010 HRTO 2540

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Josh Patus

Applicant

-and-

Youth Resources Niagara

Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: December 29, 2010

Citation: 2010 HRTO 2540

Indexed as: Patus v. Youth Resources Niagara

1This is an Application filed on October 4, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant indicated in the Application that the facts of the Application were part of a union grievance proceeding that was still in progress, and provided a copy of the grievance, dated March 10, 2010, filed on his behalf by his union, Ontario Public Service Employees Union (the “union”).

3The Tribunal sent a Notice of Intent to Defer to the parties on October 27, 2010, and sought submissions by November 27, 2010.

4The applicant indicated the grievance had been withdrawn and that he opposed deferral. The union has not set out its position.

5The respondent states that the March 10, 2010 grievance, scheduled to be heard before an arbitrator on October 6, 2010, had been withdrawn by the union on October 5, 2010. However, the respondent indicates that the applicant has filed a second grievance dated November 10, 2010, and has attached a copy of that grievance. The language in the second grievance closely mirrors the language of the first and appears to allege ongoing harassment, intimidation and bullying. It also appears to seek similar relief. The respondent does not oppose deferral. The applicant was copied with these submissions.

6The 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.

7The 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).

8The 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.

9In 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 both grievances. The matter is still live and the grievance process relating to the second grievance has not concluded. It is not yet apparent whether or not the applicant’s November 10, 2010 grievance will be referred to arbitration. But 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.

10The Application will therefore be deferred pending the completion of the grievance process.

11The 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.

12I am not seized of this matter.