HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mel Ermilio De Lisa
Applicant
-and-
Native Child and Family Services of Toronto and Erin Moe
Respondents
INTERIM DECISION
Adjudicator: Alan G. Smith
Indexed as: De Lisa v. Native Child and Family Services of Toronto
WRITTEN SUBMISSIONS BY:
Mel Ermilio De Lisa, Applicant ) Self Represented
Native Child and Family Services of Toronto and Erin Moe, Respondents ) Mark V. Ellis, Counsel
BACKGROUND
1This is an Application filed on March 2, 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 applicant alleges discrimination based on race, ancestry, sex, marital status and reprisal or threat of reprisal in the context of employment.
2This Interim Decision deals with a Notice of Intent to Defer issued by the Tribunal on June 20, 2011, by which the Application would be deferred pending the outcome of the ongoing workplace grievance-arbitration process. A total of six grievances were filed by the applicant’s bargaining agent on behalf of the applicant between March 4 and 7, 2011.
3In submissions filed on July 20, 2011, the respondents state that, “…the parties are currently in the process of selecting an arbitrator and scheduling dates for the arbitration of these grievances”. The respondents appear to consent to deferral of the Application by asking for it to be “stayed”.
4In a Reply to the Notice of Intent to Defer filed with the Tribunal on July 11, 2011, the applicant opposes deferral, stating in part:
…the union grievances do not fully address all the issues…a union arbitrator may be restricted by the employment standards in consideration of an award of damages and the full extent of pain and suffering…
ANALYSIS
5Deferral 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.
6While 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 (Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10; Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779)
7The 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 (see Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).
8I find it is appropriate to defer this Application pending the completion of the grievance process. The key issue at the heart of the grievances, the termination of the applicant’s employment by the institutional respondent in March 2011, 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 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 and Chau v. Workright, 2011 HRTO 598).
ORDER
9In these circumstances, I find that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration process. I direct the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, 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.
Dated at Toronto, this 11th Day of August, 2011.
“Signed by”
Alan G. Smith
Member