HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.B.

Applicant

-and-

Toronto Police Association

Respondent

A N D B E T W E E N:

A.B.

Applicant

-and-

Toronto Police Services Board

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: January 4, 2011

Citation: 2011 HRTO 4

Indexed as: A.B. v. Toronto Police Association

INTRODUCTION

1The purpose of this Interim Decision is to address whether the Application should be deferred pending the completion of a criminal proceeding.

BACKGROUND

2The applicant, who was a civilian member with the Toronto Police Service (“TPS”) for approximately 20 years, was charged on June 26, 2009 with sexual exploitation of a minor and possession of a dangerous weapon. The applicant describes the minor as his common-law partner. TPS immediately suspended the applicant without pay. The Toronto Police Association (“the Association”) filed a grievance on the applicant’s behalf, but on October 22, 2009, TPS terminated the applicant’s employment on the basis of misuse of company property and his “inappropriate sexual relationship with a minor.” The Association decided not to proceed to arbitration.

3The applicant takes the position that at least one of the reasons for the Association’s decision to withdraw the grievance was because of his age and martial status which the Association considered in deeming the applicant’s relationship with the minor to be improper, and the chances of the grievance succeeding to be slim. The applicant also believes that the Association discriminated against him by refusing to consider how his disability would mitigate elements of his grievance.

4Similarly, the applicant takes the position that at least one of the reasons for TPS’s decision to terminate his employment was because of his age and marital status. He also states that the TPA discriminated against him on the basis of disability because it did not consider any of his disabilities in his discipline.

5Criminal proceedings are to take place on January 31, 2011. On November 9, 2010, the Tribunal issued a Notice of Intent to Defer the Application pending the resolution of the criminal proceedings arising out of the applicant’s arrest, and invited submissions from the parties. The applicant stated in his Applications that he wished to defer pending the outcome of the criminal proceedings, but provided no further submissions in response to the Notice. The TPS responded but it neither opposes nor consents to a deferral. The Association opposes a deferral.

SUBMISSIONS

6The Association argues that a deferral will create substantial delay resulting in increased costs for all parties, but it does not explain how the increased costs will accrue.

7The Association also argues that the conclusion of the criminal proceedings, whether they result in a finding of guilt or innocence, will not conflict or overlap with the processing of the Application because the Association’s conclusion about the likelihood of success of the grievance was made on the basis of undisputed facts.

ANALYSIS

8Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

9In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

Deferral 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 automatically invoked simply because the parties are involved in other legal proceedings.

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.

10In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. There is some overlap in facts and issues between this Application and the criminal proceedings which will at least in part focus on the age of the applicant and his relationship with the minor he describes as his common-law partner. A deferral need not impose extra costs on the respondents; I therefore do not think one would be unfair to them. Furthermore, the criminal proceedings appear to be at a more advanced stage than these proceedings.

ORDER

11The Applications are deferred pending conclusion of the criminal proceedings. 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 before the Tribunal after the criminal proceedings have concluded.

12I am not seized of this matter.