Niles v. Peel Regional Police Services Board, 2011 HRTO 1182

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dirk Niles

Applicant

-and-

Peel Regional Police Services Board, Michael Metcalf,

Steve Asanin, Roman Boychuk, Robert Devolin,

Paul Donnelly and Douglas Grozier, Peel Regional Police Association

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: June 17, 2011

Citation: 2011 HRTO 1182

Indexed as: Niles v. Peel Regional Police Services Board

1The purpose of this Interim Decision is to address the question of whether to defer this Application pending completion of the arbitration of the grievance based on some of the same facts as set out in the Application.

2The applicant filed this Application, dated November 8, 2010, alleging discrimination in employment on the basis of race, colour, ancestry, place of origin and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Tribunal issued a Notice of Intent to Defer (the “Notice”) on April 14, 2011.

3The applicant is a first class constable with the Region of Peel Police Services Board (“Peel”). His Application concerns his treatment commencing shortly after he was employed with Peel, two competitions for promotion to the rank of sergeant, which took place in 2008 and 2009, and the subsequent internal investigation of his complaint by Peel in 2010. The grievance filed on his behalf by the Peel Regional Police Association (the “Association”) concerns the 2009 competition.

4The 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.

5The 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).

6The 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.

7Peel supports deferring the Application until the completion of the grievance process. It points out that the matter has been referred to arbitration and the arbitrator, Belinda Kirkwood, has already issued preliminary rulings on the matter. It submits that it is not necessary for the subject matter of the Application and grievance to be identical, just that there is factual overlap.

8The applicant and Association oppose deferral. They agree that the Arbitrator Kirkwood has made some preliminary rulings on production, but given her schedule, it is unlikely that dates for the hearing of the merits of the grievance can be heard until May 2012 at the earliest.

9Moreover, they submit that the subject matter of the two proceedings is sufficiently different that it militates against deferral. The Association states that the applicant was clear that he wanted the Association to deal with “unfairness” of the 2009 process, but was clear that he wished the issue of discrimination to be addressed by the Tribunal.

10The grievance is a single page, dealing with a single issue, whereas the particulars of the Application are set out in document that is 192 paragraphs (and 31 typewritten pages) in length. The scope of the Application is clearly much greater than the grievance.

11Given the complexity of the issues raised by the applicant, it is not appropriate to defer consideration of them until after the issue raised in the grievance is addressed. Although the respondents will be facing two simultaneous proceedings, there may be procedural solutions to minimize any unfairness. Overall, I am of the view that it is fair, just and expeditious to not defer the Application in these circumstances. The Application will proceed.

12I am not seized of this matter.