Thompson v. Liquor Control Board of Ontario, 2011 HRTO 1237

Human Rights Tribunal of Ontario

Between:

Lee Thompson Applicant

-and-

Liquor Control Board of Ontario and the Ontario Public Service Employees Union Respondents

Interim Decision

Adjudicator: Eric Whist Date: June 28, 2011 Citation: 2011 HRTO 1237 Indexed as: Thompson v. Liquor Control Board of Ontario

Written Submissions

Lee Thompson, Applicant (Self-represented) Liquor Control Board of Ontario, Respondent (Justin Diggle, Counsel)

1This Application was filed on April 28, 2009 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application alleges discrimination in employment on the basis of race, colour, ancestry, disability, family status as well as reprisal. This Interim Decision deals with whether the Application should be deferred pending the completion of related grievance proceedings.

Background

2The applicant has been an employee of the LCBO (the "corporate respondent") since 1993 and is currently a full time Customer Service Representative. He has been working in various LCBO retail outlets in the greater Toronto area. The applicant alleges that he has been repeatedly the subject of discriminatory treatment by the corporate respondent, principally in relation to his efforts to be transferred to a LCBO location closer to his home in Brampton.

3The Tribunal has issued a number of Interim Decisions in relation to this Application. In an Interim Decision dated February 1, 2011, 2011 HRTO 223, the Tribunal allowed the applicant's request to amend his Application to include a further allegation that the corporate respondent has not accommodated an injury sustained by the applicant. The applicant contends that the injury affects his ability to commute to his present work location. The Tribunal determined that this allegation (the "Transfer Allegation") flowed from the continuum of facts of the original Application.

4Following this Interim Decision, the parties filed further submissions with the Tribunal on the wording of the applicant's proposed amendments to the Application. The corporate respondent also indicated in its submissions that the applicant had an active grievance in relation to the injury that had formed the basis of the Transfer Allegation which had been added to the applicant's amended Application. The corporate respondent then indicated that it would file a request with the Tribunal to have consideration of the Transfer Allegation deferred pending the conclusion of the grievance and arbitration process.

5The Tribunal issued a further Interim Decision on April 26, 2011, 2011 HRTO 816, clarifying the amended Application and indicating that the Tribunal does not defer consideration of parts of an Application. The Tribunal stated that if the corporate respondent decided to proceed with a request to defer the Application, it needed to file a Form 10 Request for an Order During Proceedings. The Tribunal received this request on May 16, 2011. The Tribunal received the applicant's response on June 20, 2011 opposing the request to defer.

The Request to Defer

6The corporate respondent submits that the applicant has two active grievances related to the substance of his Application and requests that the Application be deferred pending the outcome of these two grievances.

7The corporate respondent submits that the first grievance, dated January 9, 2008 and bearing OPSEU [the Ontario Public Service Employees Union] Grievance Number 2008-5107 0018 (Grievance #1) relates to the same subject matter as the Application. The corporate respondent submits that it was on the basis of this grievance that it made a request to defer in its original Response to the Application filed July 30, 2009. The corporate respondent states that the Tribunal issued an Interim Decision dated September 11, 2009, 2009 HRTO 1457, requesting the parties file submissions with respect to this request to defer. The Tribunal held a teleconference on April 1, 2010 to consider the parties' submissions before issuing a further Interim Decision dated April 8, 2010, 2010 HRTO 779 in which it stated that it was ultimately not necessary to hear submissions on this request to defer because:

At the outset of the teleconference, the applicant stated his intention to withdraw the outstanding grievance of concern to the LCBO (OPSEU Grievance Number 2008-5107-0018). The applicant had previously communicated his intention to withdraw this grievance in a letter to the Tribunal dated October 5, 2009. The LCBO stated that as the applicant was committing to withdrawing his grievance the LCBO was prepared to no longer request that the Application be deferred. (para 4)

8The corporate respondent submits that Grievance #1 has not been withdrawn and continues to be processed. According to the corporate respondent, this grievance was not resolved at a Stage 3 meeting held on August 11, 2009 and has been referred to the Grievance Settlement Board where it is waiting to be scheduled for a hearing.

9The corporate respondent submits that the second grievance, dated October 27, 2010 (Grievance #2 - which the respondent suggests is misdated) also relates to the subject matter of the Application and more specifically to the "Transfer Allegation". The corporate respondent submits that this grievance was not resolved at a Stage 2 meeting held on September 21, 2010 and that it is waiting to be scheduled for a Stage 3 meeting.

10The applicant submits that he did try to withdraw Grievance #1 following the April 1, 2010 teleconference by verbally indicating this interest to an OPSEU official but then learned that a written form needed to be submitted to officially withdraw a grievance. He submits that he never received this form from OPSEU. The applicant submits that he has been informed by an OPSEU official that Grievance #1 is not active as it is pending the outcome of his Application before the Tribunal. The applicant states that a withdrawal form was sent to him on June 20, 2011 in respect of Grievance #1.

11The applicant submits that the failure to withdraw this grievance was a result of a miscommunication and that it has been his intent to pursue his underlying complaint about the corporate respondent through the Tribunal process.

12The applicant submits that while his Application and grievances may sound similar they are different. He submits that his primary complaint is that the corporate respondent has failed to accommodate his family status issues by not allowing him to work closer to home to care for his ailing mother. The applicant submits that this complaint is also based on race and colour as the respondent accommodates white employees with similar accommodation requests. The applicant submits that his request to transfer to a location closer to his home because of a physical disability that makes it difficult for him to commute is a secondary issue. The applicant indicates that it is in his best interests to pursue these complaints with the Tribunal. It is not clear from the applicant's submissions how the substance of his Application differs from his grievances.

13The applicant also submits that his union has failed to adequately respond to a number of his grievances arguing that the way he has been treated has been arbitrary, discriminatory and a demonstration of bad faith.

Decision

14The 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 of the Tribunal's Rules of Procedure). The Tribunal will generally defer an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues. Grievance arbitrators not only have 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 as was affirmed by the Supreme Court of Canada (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42). However, in each case, the Tribunal must consider, in light of the particular circumstances, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

15Having considered the circumstances of this case I order the deferral of the Application given the active nature of both grievances. The purpose of deferring an application is to ensure that proceedings dealing with some or all of the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. I am of the view that to proceed with the Application at this time would involve concurrent, overlapping proceedings, would be an inefficient and inappropriate use of both Tribunal and party resources and would not be the most fair, just or expeditious way to proceed.

16I am satisfied that both of the applicant's grievances before me deal with facts and issues raised in the Application. Grievance #1 states that the applicant has not been accommodated under the Collective Agreement and asks as a settlement that the applicant be transferred to Brampton. The grievance's central contention is that the corporate respondent's refusal to transfer the applicant to a store closer to home, as requested, is discriminatory. Grievance #2 states that the corporate respondent has not accommodated the applicant because of his disability and that this failure constitutes discrimination. Grievance #2 indicates a request for accommodation following the duration of the applicant's travelling period. I am satisfied that this grievance clearly relates to the underlying facts and issues raised in the "Transfer Allegation". It is also related, in some measure, to the allegations contained in the Application that the applicant has had a number of medical conditions that have affected his ability to commute to work and that the corporate respondent has not accommodated him by allowing him to transfer to a different work location.

17The applicant states that the failure to withdraw Grievance #1 following the teleconference on April 1, 2010 was the result of a miscommunication. Although this may be the case, the grievance is still active. Further, even if the applicant was to withdraw this grievance, I am of the view that the Application should still be deferred in light of Grievance #2. Again, I reiterate the purpose of deferring an application is to ensure that proceedings dealing with some or all of the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

18The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the applicant's related grievances have been concluded.

19Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance proceedings.

20I am not seized of this matter