Walton v. Fisher and Ludlow, 2011 HRTO 1038

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Phillip Walton

Applicant

-and-

Fisher and Ludlow

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: May 31, 2011

Citation: 2011 HRTO 1038

Indexed as: Walton v. Fisher and Ludlow

1The applicant filed an Application on February 15, 2011 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability. The Application indicates that the facts of the Application are part of a grievance.

2The purpose of this Interim Decision is to deal with the issue of whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of the grievance process.

3On April 8, 2011, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal invited the applicant, the respondent and the applicant’s union (as an affected party), to file submissions as to why consideration of the Application should or should not be deferred.

4The applicant and the respondent filed submissions in response to the Notice of Intent to Defer. No submissions were received from the applicant’s union.

DECISION

5The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

6Although the applicant appears to be dissatisfied with the progress of his grievance, the applicant acknowledges that the facts of his Application are part of his grievance. The applicant submits that he believes the Tribunal is better suited to deal with the issues as opposed to the grievance process.

7The respondent submits that the subject matter of the Application is the same as the outstanding grievance. The respondent points out that the grievance has been referred to arbitration and that a hearing is scheduled for August 24, 2011.

8In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the applicant’s grievance. I appreciate that the applicant may be unhappy with the grievance process; however, there is no indication that the human rights issues will not be resolved or dealt with at the arbitration hearing. 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).

9The Application will therefore be deferred pending the completion of the grievance process. The 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.

10I am not seized of this matter.