Rodrigues v. Toronto (City), 2011 HRTO 1307

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Raphael Rodrigues Applicant

-and-

City of Toronto, Lynda Marshall and Leslie Jardine Respondents

INTERIM DECISION

Adjudicator: Alan G. Smith Date: July 7, 2011 Citation: 2011 HRTO 1307 Indexed as: Rodrigues v. Toronto (City)

WRITTEN SUBMISSIONS BY:

Raphael Rodrigues, Applicant ) Self Represented City of Toronto, Lynda Marshall and ) Leslie Jardine, Respondents ) Cory Lynch, Counsel

BACKGROUND

1This is an Application filed February 17, 2011, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). The respondents filed a Response on May 24, 2011. This interim decision deals with a Request to Defer by the respondent by which the Application would be deferred pending the outcome of the ongoing workplace grievance/arbitration process. The grievance was filed by the applicant's bargaining agent on January 18, 2011. The respondents state that, "the grievance procedure is ongoing" with a "Step 2 meeting" having taken place on March 15, 2011.

2In a Reply filed with the Tribunal on March 9, 2011, the applicant opposes deferral for the following reasons:

a) The grievance may not address the alleged violations of the Code;

b) Unlike the Code, the grievance/arbitration process does not allow for an award of "punitive" damages;

c) The grievance/arbitration process is too slow.

DECISION

3Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.

4While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type 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, Christianson v. College of Physicians and Surgeons, 2009 HRTO 438, at para. 10 and Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.

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: Blackman v. Ontario (Minister of Community Safety and Correctional Services), 2009 HRTO 970 at para. 5. 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 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. Moreover, in the present case Article 5.02 of the applicable collective agreement empowers an arbitrator to address disability issues pursuant to the Code. The applicant's grievance also specifically alleges a violation of the Code.

6In the same vein, the remedies that are available to a grievor in an arbitration award and the Code are potentially quite similar. Pursuant to section 48 (12) (j) of the Ontario Labour Relations Act, 1995, SO 1995, c 1, Sch A, an arbitrator has the power to, "interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement." It should also be noted that although the remedies available under the Code Section 45.2 include compensation and/or restitution for injury to "dignity, feelings and self-respect" the Tribunal is not empowered to award "punitive" damages, see Smith v. Menzies Chrysler Incorporated, 2008 HRTO 37.

7Finally, while the applicant may be frustrated with the length of time the grievance/arbitration process has taken, this is not a sufficient reason to proceed with the Application in all the circumstances see, Law v. Organizational Solution, 2010 HRTO 1158 and Rego v. Mount Sinai Hospital, 2011 HRTO 458.

8In conclusion, I find it appropriate to defer this Application pending the completion of the grievance process. The key issue at the heart of that grievance, the allegation that the respondent employer failed to accommodate the applicant's disability, is also the key issue covered by this Application. There may be issues raised by the Application that go beyond those that will be litigated before the arbitrator. However, given the considerable factual overlap between the two proceedings, the potential for the arbitration to determine some or all of the issues in this Application, and the stage of that arbitration process, the rational and orderly litigation of the various issues between this applicant and his employer favour deferral, see O'Brien v. Burlington (City), 2009 HRTO 1818.

ORDER

9In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration process. The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

10I am not seized of this matter.