Symons v. University of Ottawa, 2011 HRTO 1004

Human Rights Tribunal of Ontario

B E T W E E N:

Stephen Symons Applicant

-and-

University of Ottawa Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith Date: June 2, 2011 Citation: 2011 HRTO 1004 Indexed as: Symons v. University of Ottawa

WRITTEN SUBMISSIONS BY:

Stephen Symons, Applicant ) Chloe Charbonneau-Jobin, ) Representative

University of Ottawa, Respondents ) Andre Champagney, Counsel

INTRODUCTION

1This is an Application filed February 25, 2011, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination based on disability and age in employment. This interim decision deals with a Notice of Intent to Defer by the Tribunal issued April 6, 2011, by which the Application would be deferred pending the outcome of an ongoing workplace grievance-arbitration process undertaken by the applicant and employer respondent.

2In a response to the Notice of Intent to Defer filed May 5, 2011, counsel for the employer respondent advised that the employer consented to have the Application deferred given that a key allegation contained in the Application, the January 2011 termination of the applicant’s employment, is the subject of a grievance filed by the applicant’s bargaining agent on January 21, 2011.

3By email from the representative of the applicant to the Tribunal received May 6, 2011, the applicant consented to deferral of his Application but submitted that, “in all fairness to him and the process, before this matter is deferred, the Respondent should be required to provide his response to the Application”.

DECISION

4The Tribunal’s Tribunal Rule 14.1 states in part:

14.1 The Tribunal may defer consideration of an Application, on such terms as it may determine…

5Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.

6While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.(Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10, Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779).

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: see Blackman v. Ontario (Minister of Community Safety and Correctional Services), 2009 HRTO 970 at para. 5. 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 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).

8A review of the grievance filed by the applicant in January 2011 reveals it is virtually identical to the subject matter of the Application.

9The submissions made by the employer respondent to the Notice of Intent to Defer contained a 6 page, 24 paragraph narrative, which appears to provide at least a partial response to the allegations contained in the Application. In view of this, the Tribunal declines to order the respondent to file a Form 2 Response at this time.

ORDER

10On consent of all parties, the Tribunal orders consideration of the Application deferred pending the conclusion of the grievance arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

11I am not seized of this matter.