HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Donald Williams
Applicant
-and-
Toronto Transit Commission, Lori MacGregor and Nick Valente
Respondents
-and-
Amalgamated Transit Union, Local 113
Intervenor
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Williams v. Toronto Transit Commission
1The applicant filed an Application on June 28, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination and reprisal with respect to employment because of the applicant’s association with an individual protected by the Code.
2The Application alleges, in part, that the applicant experienced discrimination because of his association with another employee (“EM”) who raised human rights concerns in the workplace. The applicant alleges that, because of statements the respondents have made leading up to and during EM’s unfair dismissal arbitration before Arbitrator Louisa Davie, he has reasons to believe that he is being treated unfairly by the respondents due to his association with EM.
3The respondents contend that the allegations set out in the present Application are examples of the breaches of confidentiality being considered by Arbitrator Davie and, as such, the Application should be dismissed as it is based upon confidential and improperly obtained information. Alternatively, the respondents argue that paragraphs in the Application relating to the confidential and improperly obtained information should be struck.
4In an earlier Case Assessment Direction, dated May 30, 2011, the Tribunal determined that it was appropriate to receive submissions with respect to issue of deferral. The Tribunal directed the parties and the intervenor to file written submissions with respect to the issue of deferral and to address the following questions:
(i) What is the status of the arbitration hearing before Arbitrator Davie; and
(ii) Has the issue of the alleged breach of Arbitrator Davie’s November 5, 2010 Order (confidentiality of documents) been subsequently addressed before Arbitrator Davie or determined by Arbitrator Davie.
Previously, the Tribunal had received submissions from the parties with respect to the issues of confidentiality.
5The intervenor and the corporate respondent filed submissions in response to the Case Assessment Direction. The applicant and personal respondents did not file submissions in response to the Case Assessment Direction.
6The intervenor confirmed that the unfair dismissal grievance of EM is on-going and that, on November 5, 2010, Arbitrator Davie ordered all parties and participants to the grievance arbitration to not discuss the evidence and submissions from that hearing, except to the extent that the corporate respondent must address this Application. The intervenor took no position with respect to the deferral.
7The corporate respondent indicates that Arbitrator Davie is currently hearing evidence and considering its Motion to Dismiss EM’s grievance because of various alleged violations of confidentiality, including breaches of Arbitrator Davie’s orders, which have impaired the employer’s right to a fair arbitration hearing. The corporate respondent argues that the current Application should not be deferred because the Tribunal can determine on a preliminary basis whether the applicant’s allegations are founded, in whole or in part, based on improperly obtained information and confidential documents and evidence disclosed during EM’s arbitration. The corporate respondent reiterated its position that the Application should be dismissed or certain allegations struck for being in breach of Arbitrator Davie’s confidentiality orders and for violating the implied undertaking rule.
DECISION
8The 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).
9Based on the parties’ materials, it appears that Arbitrator Davie is hearing evidence and considering a variety of issues with respect to the corporate respondent’s Motion to Dismiss EM’s grievance. It appear that this process is on-going and that Arbitrator Davie is hearing evidence regarding alleged breaches of confidentiality, including breaches of her witness exclusion order, her order to not discuss evidence tendered during the proceeding, violation of the rule of implied undertaking with respect to certain documents, abuse of process, infringement of privacy, and intimidation of witnesses.
10Deferral of an application ensures that proceedings dealing with similar or overlapping issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404. For the purpose of considering whether deferral is appropriate, the issue is not only whether the facts, issues and remedies claimed are similar, but rather whether the Tribunal’s goals of fairness, justice and expeditiousness is advanced by avoiding multiple proceedings simultaneously dealing with related subject matter and risking conflicting evidentiary and legal findings.
11The submissions, and information contained in the Tribunal’s file, confirm that there is an ongoing arbitration hearing before Arbitrator Davie and that some of the applicant’s allegations may relate to information gleaned from the arbitration process. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. While EM’s grievance is not the applicant’s grievance, I see no reason to depart from this approach in view of the interrelated nature of the Application and the Motion to Dismiss being considered by Arbitrator Davie. The grievance arbitration is well underway and is scheduled to continue next month.
12Based on the materials filed with the Tribunal, it appears that there are a number of preliminary factual and legal issues being considered as part of EM’s outstanding grievance arbitration which relate to the issues raised in this Application. Although the issues in that grievance are not identical to the current Application, there is a clear overlap between the preliminary legal issues and evidentiary facts raised in both proceedings. As well, it appears that some of the parties and witnesses in this Application have been or will be participants or witnesses in the arbitration hearing, and may also provide information to the Tribunal in dealing with the respondents’ request to dismiss/strike the Application.
13Given the possibility of concurrent proceedings and the risk of inconsistent findings of fact and law with respect to the same preliminary issues, the Tribunal determines that the most fair, just and expeditious approach is to defer consideration of this Application in these circumstances
14The Tribunal orders the deferral of the Application pending the conclusion of Arbitrator Davie’s hearing of the Motion to Dismiss. Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).
15Given the Tribunal’s decision to defer this Application, the respondents’ request to dismiss or strike parts of the Application can be determined when and if the matter is brought back before the Tribunal.
16I am not seized.
Dated at Toronto, this 29th day of June, 2011.
”signed by”____________
Ena Chadha
Vice-chair