Storey v. Hanover (Town), 2010 HRTO 952

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darren Storey

Applicant

-and-

The Corporation of the Town of Hanover, Hanover Police Services Board and Tracy David

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: April 30, 2010

Citation: 2010 HRTO 952

Indexed as: Storey v. Hanover (Town)

1The purpose of this Interim Decision is to request written submissions from the Hanover Police Association (the “Association”) and two of the respondents on whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of a grievance proceeding.

2The applicant, who is a police constable, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 30, 2009, which alleges that the respondents discriminated against him with respect to employment because of his disability.

3The respondents filed separate Responses on February 23, 2010, which all deny the allegation of discrimination. The Corporation of the Town of Hanover (the “Town”) requested that the Tribunal dismiss the Application against it because it is not the applicant’s employer. The Hanover Police Services Board (the “Board”) and the Chief of the Hanover Police Service (the “Service”), Tracy David (“Chief David”), both requested that the Tribunal defer the Application until a grievance proceeding and a misconduct investigation under the Police Services Act, R.S.O. 1990, c. P.15, are completed

4The applicant filed a Reply on April 1, 2010, which only addresses the request to defer the Application.

5Rule 1.7(g) of the Tribunal’s Rules of Procedures authorizes the Tribunal to determine and direct the order in which issues in a proceeding, including issues considered by a party or the parties to be preliminary, will be considered and determined.

6In my view, the first preliminary issue that should be considered and determined is the Board and Chief David’s request to defer the Application. I am satisfied that I have sufficient information before me to decide the deferral issue with respect to the misconduct investigation, but not the grievance proceeding.

7The parties’ submissions with respect to deferring the Application until the grievance proceeding is completed contradict each other in key respects. The applicant, the Board and Chief David agree that the applicant filed a Notification of Grievance on December 4, 2009 (a copy of the Notification was attached to Chief David’s Response), but disagree about the status of the grievance.

8The Board and Chief David submit that Chief David advised the Association on December 4, 2009 that the grievance was denied, and since then neither the applicant nor the Association has advanced the grievance beyond the first step of the grievance process. The Board and Chief David did not file a copy of the denial of the grievance (if such a document exists) with their Responses.

9The applicant, on the other hand, submits that the grievance did not proceed to the first step of the grievance process because Chief David denied that there was a grievance, and refused to provide a response to grievance. The applicant further submits that Chief David never advised the Association that the grievance was denied, and that the Service and the Association later agreed to hold the grievance in abeyance.

10In my view, given the parties’ contradictory submissions, the next appropriate step is to request written submissions from the Association on whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of the grievance proceeding.

11The Association is directed to deliver to the parties and file with the Tribunal by May 14, 2010 written submissions, including documents and case law, if any, which address the issue of deferral. The Association should also address the status of the grievance, and whether or not Chief David advised the Association on December 4, 2009 that the grievance was denied.

12The Board and Chief David are directed to deliver to the parties and file with the Tribunal by May 24, 2010 written submissions, including documents and case law, if any, in reply to the applicant and the Association’s submissions on the deferral issue.

13The Tribunal may then determine the deferral issue based on the written submissions of the parties and the Association, or may issue further case management directions.

14The Tribunal will address the Town’s request to dismiss the Application against it, if necessary, after it has decided whether or not to defer the Application.

15I am not seized of this matter.