Human Rights Tribunal of Ontario
Between:
Robert Bartlett, Applicant
-and-
Aecon Group Inc., Neil Frank and Rob DiCesare, Respondents
Interim Decision
Adjudicator: Ian R. Mackenzie Date: October 13, 2011 Citation: 2011 HRTO 1847 Indexed as: Bartlett v. Aecon Group
1Robert Bartlett has filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.
2In his Application, the applicant alleges that the respondents have refused to accommodate his disability. The applicant was laid off from his position with the corporate respondent, Aecon. In his Application, the applicant requests monetary compensation for lost wages, pension and benefits. He also requests training for managers at Aecon.
3The applicant states in the Application that the facts set out in the Application are part of a union grievance proceeding which is still in progress.
4Mr. Bartlett is represented by the Universal Workers’ Union, Labourer’s International Union of North America (“LIUNA”), Local 183 (the “union”). The union filed a grievance on the applicant’s behalf on June 15, 2011 alleging a breach of the collective agreement and the Code. In its submissions to the Tribunal, the Union stated that it had taken the position in the grievance that the employer’s refusal to reinstate Mr. Bartlett constituted discrimination on the basis of disability and/or perceived disability and also referred to the failure of the employer to accommodate him. The union claimed damages for lost wages, as well as general damages, including compensation for injury to dignity, feelings and self-respect, punitive damages and special damages. The union also requested training in human rights for all employees as a remedy in the grievance.
5The union referred the grievance to arbitration on or about July 4, 2011. The respondent states that the grievance hearing scheduled for July 25, 2011 was adjourned “sine die” (without a date) pending the receipt of updated medical information from Mr. Bartlett. The hearing will be rescheduled once the medical information is provided.
6The respondents submitted that the Application should be deferred pending the outcome of the grievance. The applicant disagreed. He stated that the Application has nothing to do with the grievance: “One is between the union and the company; this is between me and Aecon”.
7The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
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. Human rights tribunals are not the only decision-makers that can decide human rights claims (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42). Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.
9In this case, the facts and human rights issues raised in the Application are identical to the issues raised in the grievance. The remedies requested in the Application and the grievance are substantially similar as well. The grievance is still ongoing.
10The Application will therefore be deferred pending the completion of the grievance process.
11If the applicant believes, on conclusion of the grievance process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.
12The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.
13The respondents’ Request to have Neil Frank and Robert DiCesare removed as respondents will be addressed by the Tribunal if there is a Request to reactivate the Application.
14I am not seized.
Dated at Toronto, this 13th day of October, 2011.
”signed by”_________
Ian R. Mackenzie
Vice-chair