Cole v. Hydro One Networks Inc., 2011 HRTO 1198

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bryan Cole

Applicant

-and-

Hydro One Networks Inc.

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: June 21, 2011

Citation: 2011 HRTO 1198

Indexed as: Cole v. Hydro One Networks Inc.

1This is an Application filed on March 29, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent discriminated against the applicant on the basis of disability in respect of employment. Specifically, the applicant contends that the respondent employer denied him necessary accommodation or modified work in the workplace when it placed him on a medical leave of absence in or around December 2010 and then refused to call him back to work because of his inability to use chainsaws and brush saws.

2This Interim Decision addresses the respondent’s Request that the Tribunal defer consideration of the Application, pending the conclusion of an arbitration hearing in respect of a grievance which, it submits, raises some or all of the same facts and issues as the Application (“Request to Defer”).

3On or about February 11, 2011, the applicant’s trade union, the Power Workers’ Union, Canadian Union of Public Employees Local 1000 (“PWU”), filed a grievance on the applicant’s behalf against the respondent employer, alleging that the respondent infringed the applicant’s rights under the Code by refusing to accommodate the applicant’s disability-related needs. The grievance was referred to arbitration before Arbitrator Robert Herman and the arbitration hearing is scheduled to commence on June 23, 2011.

4The applicant’s trade union requests that the Tribunal defer consideration of the Application pending the conclusion of the hearing before Arbitrator Herman. The applicant did not make any submissions on the Request to Defer though given an opportunity to do so.

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). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

6The facts and issues in this Application appear to be the same as those in the applicant’s February 2011 grievance. Indeed, in the section of his Application where he is to describe the discriminatory event(s) to which the Application relates, the applicant refers to the grievance arbitration brief prepared by his trade union for the hearing before Arbitrator Herman and attaches a copy of the brief to his Application.

7Given the significant overlap between the Application and the February 2011 grievance, proceeding with the Application while the grievance arbitration procedure is ongoing could very possibly lead to inconsistent decisions on the factual and/or legal issues raised in the Application and the grievance. The primary purpose of deferring an Application is to avoid such potential inconsistency. In all of the circumstances, deferring the Application is appropriate.

8The Tribunal orders the deferral of this Application pending the conclusion of the arbitration hearing in respect of the applicant’s grievance. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s rules of procedure available at www.hrto.ca, which outline the process by which the Application may be brought back on after the grievance arbitration has been concluded.

9There is an outstanding Request to Intervene in this proceeding by the applicant’s trade union. The respondent opposes the union’s Request. The Tribunal will address the Request when and if this Application is brought back on before the Tribunal.

10I am not seized of this matter.