Don Dudar v. Public Service Alliance of Canada, 2011 HRTO 510

Human Rights Tribunal of Ontario

B E T W E E N:

Don Dudar Applicant

-and-

Public Service Alliance of Canada Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith Date: March 14, 2011 Citation: 2011 HRTO 510 Indexed as: Dudar v. Public Service Alliance of Canada

WRITTEN SUBMISSIONS

Don Dudar, Applicant ) Self-represented Public Service Alliance of Canada, ) Suzanne Brandon, Respondent ) Representative

INTRODUCTION

1This is an Application filed August 23, 2010, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). This Interim Decision deals with the respondent’s Request to Defer the Application pending the outcome of the ongoing workplace grievance-arbitration process.

2The applicant confirms he has filed a total of eight grievances through his bargaining agent, the Canadian Union of Labour Employees (CULE) between August 31, 2009 and January 8, 2011. He opposes deferral because he is concerned that CULE had withdrawn a grievance filed in 2010 dealing with workplace harassment.

3Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.

4While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application 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. See Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10; Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.

DECISION

5The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. See Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970 at para. 5. In explaining this approach, the Tribunal has referred to the fact that 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 as if they were part of the collective agreement. see Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. A review of the grievances filed by the applicant reveals they are virtually identical to the subject matter of the Application.

6While the applicant may be dissatisfied with CULE’s decision to withdraw one of the numerous grievances he has filed, an examination of the remaining grievances reveals that their subject matter is virtually identical to that of the Application.

ORDER

7In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

8I am not seized of this matter.