HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dan Norland
Applicant
-and-
The Corporation of the City of Thunder Bay
Respondent
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: Norland v. Thunder Bay (City)
1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), involves allegations of discrimination on the basis of disability in the context of employment. The applicant also alleges reprisal or threat of reprisal.
2In essence, the applicant alleges that the respondent has failed to accommodate his disability and has improperly disciplined and penalized him for absences and tardiness that are related to his disability.
3The respondent has filed a Response in which it seeks the deferral of the Application based on ongoing grievance proceedings. It states that the issues raised in the Application are identical to those raised in ongoing grievances filed on behalf of the applicant.
[4] Based on the materials filed with the Tribunal, the applicant has filed grievances alleging: a. unfair discipline because of illness; b. for failure to accommodate; and c. reprisal.
5The applicant has filed a Reply in which he objects to a deferral of the Application. Although he does not seem to dispute that the subject matter of the Application is the same as that of the grievances, he argues that the respondent has already had ample time to address the issues and that the Application should proceed.
6The applicant’s union, the Amalgamated Transit Union (“Union”), has filed a Request to Intervene. It has not, however, taken a position on the respondent’s request to defer.
7Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure (“Rules”).
[8] Rule 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.
9The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. This is because 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. See Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970.
10Based on the material before me, I am satisfied that the facts and issues raised in this Application are part of the grievance process. Accordingly, the Application will be deferred pending the completion of the grievance proceedings.
11The 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.
12The Union’s request to intervene will be addressed if the Application proceeds following the completion of grievance process.
13I am not seized of this matter.
Dated at Toronto, this 26th day of April, 2010.
“Signed by”
Michelle Flaherty
Vice-chair