Hansen v. Corporation of the Town of Oakville, 2011 HRTO 180

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ivan Hansen

Applicant

-and-

Corporation of the Town of Oakville, Andy Glynn, Brian Durdin, Domenic Lunardo, Elizabeth Bourns, Lyn Hunt, Ray Green, Richard Boyes and Sean Raleigh

Respondents

interim decision

Adjudicator: Keith Brennenstuhl

Date: January 25, 2011

Citation: 2011 HRTO 180

Indexed as: Hansen v. Oakville (Town)

1This is an Application filed on November 12, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleged discrimination in his employment on the basis of sex and family status. Among other things, the applicant complains about having received written discipline and a two day unpaid suspension and having been subjected to an extended period of probation.

2The applicant indicates that the facts in the Application are part of two union grievances still in progress and he attached the grievance forms to the Application. The grievances challenge the applicant’s written discipline and two day suspension and the extended period of probation. The applicant indicated that he was not seeking deferral.

3In its Response the respondent requested that the Application be deferred pending the resolution of the grievances for the reason that the events described in the Application are currently the subject of the two grievances.

4On January 5, 2011 the Tribunal’s Registrar sent a letter to the applicant requesting submissions from him on whether it is appropriate to defer consideration of the Application pending completion of the grievance proceedings.

5Submissions have been received from the applicant. He objects to the request for deferral. He submits that the grievances were filed many months ago and he is not confident that they can be heard in the near future. He asks that the Tribunal take “carriage” of the matter.

6The Tribunal has generally deferred applications where there is an ongoing grievance, or grievances, under a collective agreement based on the same facts and issues. In explaining this approach, the Tribunal has referred to the fact 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 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).

7In the circumstances of this case, I find that deferral is appropriate. There is clear overlap between the grievances filed and the Application insofar as the disciplinary measures and the extended probation are central factual issues in each. Even accepting that the grievances may not be addressing the human rights issues directly, I find it appropriate to avoid concurrent proceedings addressing the same factual issues. I am not satisfied that the uncertainty as to when the grievances will be heard is on its own a justification for departing from the Tribunal’s normal approach. The matters are still live and the grievance process has not concluded.

8The Application will therefore be deferred pending completion of the grievance proceedings. The parties’ attention is directed to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the grievance proceedings have been concluded.

9I am not seized.