Miroslav Radic v. The Town of Oakville, 2011 HRTO 1624

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Miroslav Radic

Applicant

-and-

The Town of Oakville

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: August 30, 2011

Citation: 2011 HRTO 1624

Indexed as: Radic v. Oakville (Town)

1The applicant filed an Application on June 6, 2011 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability and place of origin. The Application indicates that the alleged facts described in the Application, namely failure to accommodate and discriminatory treatment with respect to salary and benefits, are part of a workplace grievance. The applicant appended copies of the grievance.

2On July 14, 2011, the Tribunal issued a Notice of Intent to Defer (“Notice”) and invited the parties and affected party, the applicant’s union, to file written submissions on or before August 15, 2011 with respect to deferral.

3On August 9, 2011, the applicant wrote to the Tribunal submitting that the Application should not be deferred. The applicant indicates that any delay will negatively impact his mental health and diminish his recovery. The applicant notes that his union has agreed to arbitration in six months.

4On August 15, 2011, the respondent wrote to the Tribunal submitting that the Application should be deferred because the subject matter of the Application is also currently the subject of a pending union grievance. The respondent submits that the Application should be deferred to avoid unnecessary multiplicity of proceedings on the same subject matter.

5The affected party did not file submissions in response to the Notice to defer.

DEFERRAL

6Deferral 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.

7The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. The Supreme Court of Canada has affirmed that 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 (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42). As such, the Tribunal will generally defer an application where there is an ongoing grievance or arbitration under a collective agreement based on the same facts and issues.

8Some 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.

9Based on the materials submitted with the Application, it appears that grievance was filed prior to the Application and that the grievance raises identical concerns with respect to the alleged discrimination and failure to accommodate. I conclude that there is significant overlap in the subject matter of the Application and that of the grievance.

10The applicant’s submissions indicate that the grievance submissions process is completed and that his union anticipates that the grievance will proceed to arbitration in six months. Given the existence of concurrent proceedings and the risk of inconsistent findings of fact and law with respect to the same issues, the Tribunal determines that the most fair, just and expeditious approach in these circumstances is to defer consideration of this Application.

ORDER

11The Tribunal orders the deferral of the Application pending the conclusion of the applicant’s grievance process. 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).

12I am not seized of this matter.