Karambetsos v. Ontario (Community Safety and Correctional Services), 2011 HRTO 1693

Human Rights Tribunal of Ontario

B E T W E E N:

Constantinos Karambetsos

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Ministry of Community Safety and Correctional Services and Katherine Kringer, Vicki Robertson and Steve Walker

Respondents

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: September 14, 2011

Citation: 2011 HRTO 1693

Indexed as: Karambetsos v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS BY:

Constantinos Karambetsos, Applicant ) Self-Represented

BACKGROUND

1This is an Application filed May 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 applicant alleges, among other things, a failure to accommodate his disability and harassment by the employer respondent.

2This Interim Decision deals with a Notice of Intent to Defer issued by the Tribunal on July 13, 2011, by which the Application would be deferred pending the outcome of an ongoing workplace grievance/arbitration process.

3The applicant notes in the Application that:

Scheduled upcoming arbitration May 25/2011 – violation of memo of understanding/FOI/contravention of FOI and Protection of Privacy Act/OHRC violations/provision of false information/harassment/benefit refusals/

4In a letter to the Tribunal dated July 11, 2011, the applicant states in part:

…I would like to inform you that the mediation/arbitration that was set for May 25, 2011 has been postponed to November 16, 2011 as a one day mediation. I feel this is a stalling tactic on part of my employer. If no agreement is reached at this mediation, then a day for arbitration will be set for a later unknown time….

5In a Reply to the Notice of Intent to Defer filed with the Tribunal on August 19, 2011, the applicant essentially reiterates the allegations contained in the Application and opposes deferral because:

Numerous arbitration hearings, all under the Ministry of Labour (MOL), have been held in the past regarding the very issues of my Application. From these hearings, numerous “Memorandum of Understanding” have been produced and signed. Every single one of them has been violated almost immediately after they have been signed. My employer has failed to implement the MOL agreements which resulted in more grievances, and this vicious cycle of demoralization has continued….

ANALYSIS

6Deferral 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.

7While 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.

8The 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.

9In 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.

10The enforcement of arbitration decisions and grievance settlements is also identical to that of enforcement of decisions of the Tribunal. Section 19 of the Ontario Labour Relations Act 1995, S.O. 1995, c. 1, Sch. A states:

Where a party, employer, trade union or employee has failed to comply with any of the terms of the decision of an arbitrator or arbitration board, any party, employer, trade union or employee affected by the decision may file in the Superior Court of Justice a copy of the decision, exclusive of the reasons therefore, in the prescribed form, whereupon the decision shall be entered in the same way as a judgment or order of that court and is enforceable as such.

Similarly, section 19 of the Ontario Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 reads:

A certified copy of a tribunal’s decision or order in a proceeding may be filed in the Superior Court of Justice by the tribunal or by a party and on filing shall be deemed to be an order of that court and is enforceable as such.

11Finally, 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, 2011 HRTO 458.

12In 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 and Rodrigues v. Toronto (City), 2011 HRTO 1307.

ORDER

13In 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.

14I am not seized of this matter.