Edmund Rock v. Toronto Community Housing Corporation, 2011 HRTO 284

Human Rights Tribunal of Ontario

Between:

Edmund Rock Applicant

-and-

Toronto Community Housing Corporation Respondent

Interim Decision

Adjudicator: Sherry Liang Date: February 10, 2011 Citation: 2011 HRTO 284 Indexed as: Rock v. Toronto Community Housing

1This is an Application filed on August 25, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code").

2The applicant alleges discrimination in employment on the grounds of race and disability. His employment was terminated on December 21, 2009. The applicant is represented in his employment relations by the Ontario Public Service Employees' Union, Local 529 which has filed a grievance on his behalf challenging the termination. The grievance was not settled during the grievance process and has been referred to arbitration. A hearing date was initially scheduled for February 25, 2011, and it appears that it will continue in June 2011.

3The respondent filed a Response in which it requests that the Tribunal defer the Application pending the completion of the arbitration process.

4The applicant opposes deferral of the Application, stating that there is no information suggesting that the arbitration will deal with the issues of discrimination based on disability and race. He also states that while the Tribunal is empowered to deal with injury to one's dignity, a labour arbitrator is not, and that the sole jurisdiction of dealing with human rights violations rests with the Tribunal.

Decision

5The applicant is not correct that the sole jurisdiction to deal with human rights issues rests with the Tribunal, to the exclusion of a labour arbitrator. 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).

6The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. 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.

7Even where there is not a complete overlap of issues, the Tribunal may defer an application where there is a risk that concurrent proceedings will lead to inconsistent decisions on facts or law. Some of the factors that may be 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 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.

8In this case, while it may not be clear to what extent all of the issues raised in the Application will be part of the case put before the labour arbitrator, it is apparent that there is substantial overlap between the facts and issues covered by the Application and those referred to in the grievance. In both, the central issue is the termination of the applicant's employment and the reasons for that termination. The arbitration process is also underway. In these circumstances, I am satisfied that deferral is appropriate.

9The Application will therefore be deferred pending the completion of the arbitration proceeding. The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the arbitration has been concluded.

10I am not seized of this matter.