HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robert Atatise Applicant
-and-
Anishinabek Police Service Respondent
INTERIM DECISION
Adjudicator: Michelle Flaherty Date: September 28, 2011 Citation: 2011 HRTO 1774 Indexed as: Atatise v. Anishinabek Police Service
1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It alleges discrimination in employment on the basis of disability.
2The applicant was employed as a police officer by the respondent. He alleges, among other things, that his disability was a factor in the termination of his employment.
3In the Application, the applicant asks that consideration of the Application be deferred pending the conclusion of a union grievance and a proceeding initiated under the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (“CHRA”).
4On August 15, 2011, the Tribunal wrote to the parties and the Public Service Alliance of Canada (“Union”), who had been identified as an affected party. The Tribunal invited submissions regarding the issue of deferral.
5On September 16, 2011, the respondent filed submissions in response to the Tribunal’s letter. The respondent argues that the Tribunal does not have jurisdiction over the Application and that the matter should be dismissed. The respondent does not make any submission regarding the proposed deferral.
6The respondent states that the issues raised in the Application are properly before the Canadian Human Rights Commission (“CHRC”). The respondent states that a decision is pending in the CHRC matter as to whether, among other things, the CHRC has jurisdiction over the complaint pursuant to the CHRA.
7The respondent also argues that the Tribunal should dismiss the Application because the Application is subject to a grievance procedure and internal employer policies, which the applicant has either failed to pursue or which fully deal with the human rights issues raised in the Application.
8The Union has not filed written submissions in response to the Tribunal’s August 15, 2011 letter.
ANALYSIS
9The Tribunal will generally defer an application where there is an ongoing proceeding (including a grievance under a collective agreement) based on the same facts and issues.
10Deferral 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. However, deferral is not automatic where the parties are involved in other legal proceedings. The Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding.
11In my view, deferral is appropriate in the circumstances of this case.
12First, the parties do not dispute that the grievance proceeding relates to the same facts and issues raised in the Application.
13Second, the jurisdictional issues raised by the respondent in its submissions are already at issue in the proceeding initiated under the CHRA. The respondent has indicated that a decision is pending in this regard. To consider the request for early dismissal on the basis of jurisdiction, the Tribunal would engage in a concurrent proceeding. This would be an inefficient use of adjudicative resources and would create potential for inconsistent decisions of facts and law. It is therefore appropriate to defer consideration of the jurisdiction issue until that matter has been addressed in the proceeding initiated under the CHRA.
14In any event, the respondent has not advanced any other basis for the early dismissal of the Application. The fact that the applicant is pursuing a grievance or might have pursued remedies under an internal policy is not a basis under the Code for dismissing the Application. Rather, as I have indicated, the ongoing grievance is appropriately addressed through a deferral.
15The fact that an internal recourse may have been available to the applicant is not a basis to dismiss the Application. Pursuant to section 45.1 of the Code, the Tribunal will only dismiss an application if another proceeding has appropriately dealt with the substance of the application. For the purposes of section 45.1, an internal investigation or complaint mechanism is not generally deemed a proceeding and is, therefore, not a basis for dismissal: see, for example, Byaruhanga v. Toronto Police Services Board, 2010 HRTO 2273.
16In the circumstances of this case, no other proceeding is complete or can be said to have appropriately dealt with the substance of the Application.
17As I have indicated above, it is appropriate to defer consideration of the jurisdictional issue pending the conclusion of the matter under the CHRA. The respondent’s arguments that the Application should be dismissed because of an ongoing grievance or because of other, internal processes available to the applicant are rejected.
DECISION
18In light of the above, consideration of the Application is deferred pending the conclusion of the grievance proceeding and the claim made under the CHRA. The parties may wish to refer to Rules 14.3 and 14.4, which outline how the Application may proceed once the other matters have concluded.
19I am not seized with this matter.
Dated at Toronto, this 28th day of September, 2011.
”signed by”____________________________
Michelle Flaherty
Vice-chair