Romano v. City of Toronto, 2011 HRTO 1180

Human Rights Tribunal of Ontario

B E T W E E N:

Michael Romano

Applicant

-and-

City of Toronto

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: June 17, 2011 Citation: 2011 HRTO 1180 Indexed as: Romano v. City of Toronto

1This Application was filed on March 1, 2011 alleging discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant discusses in this Application that the facts of the Application are also part of a grievance proceeding that was commenced by his union, the Canadian Union of Public Employees, Local 416 (“CUPE 416”). The applicant asks the Tribunal to defer his Application pending the completion of the grievance process.

2This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of this grievance proceeding. The Tribunal issued a Notice of Intent to Defer (“Notice”) on May 6, 2011. Neither the applicant nor the respondent responded to that Notice, but CUPE 416 filed written submissions in support of deferral.

3The 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. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

4The 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).

5The 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.

6In this case, CUPE 416 indicated that it filed a grievance on September 10, 2010 on the applicant’s behalf, and has since referred the matter to arbitration. It submits that the grievance arbitration should resolve all issues set out in this Application. In view of these facts, and the absence of any opposition to deferral, the Application will be deferred pending the completion of the grievance process.

7The 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 Union’s Request to Intervene and the applicant’s Request for Order to amend the Application will be dealt with by the Tribunal should the Application be brought back on.

8I am not seized of this matter.