Martin v. Toronto (City), 2010 HRTO 939

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Delroy Martin Applicant

-and-

City of Toronto Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: April 29, 2010 Citation: 2010 HRTO 939 Indexed as: Martin v. Toronto (City)

1This is an Application filed on December 31, 2009, 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 sex, and reprisal, in employment. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of related grievance proceedings.

2The applicant indicates in his Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and encloses a copy of a grievance filed on his behalf by his union, the Canadian Union of Public Employees, Local 79 (the “union”). The applicant asks that his Application be deferred until the grievance proceeding is completed.

3On February 25, 2010, the Tribunal issued a Notice of Applicant Request to Defer to the parties and the union, inviting submissions on the issue of deferral. By correspondence dated March 11, 2010, the respondent indicated that it agrees to the applicant’s request to defer the Application until after the hearing of his grievances. The union did not provide submissions and the time for doing so has elapsed.

4On March 26, 2010, the applicant filed a Request for an Order During Proceedings (“RFOP”) that his Application be amended to add race as a ground of discrimination. A copy of a second grievance relating to matters in the Application was attached to the RFOP.

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.

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. While it is not yet apparent whether or not the applicant’s grievances will be referred to arbitration, the applicant has requested deferral of his Application until the grievance proceeding is completed and the respondent agrees to the request. The Application will therefore be deferred pending the completion of the grievance process.

9The 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. The applicant’s RFOP can be dealt with by the Tribunal if the Application is brought back on.