Human Rights Tribunal of Ontario
B E T W E E N:
Hopeton Robinson Applicant
-and-
Corporation of the Town of Oakville, Dominic Leonardo, Darnell Lambert, Dan Cozzi, Liz Bourns, Lyn Hunt, Hania Ellison and Sarah Arsenault Respondents
INTERIM DECISION
Adjudicator: Ian R. Mackenzie
Date: May 9, 2011
Citation: 2011 HRTO 903
Indexed as: Robinson v. Oakville (Town)
1The applicant filed an Application alleging discrimination in employment under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) on February 22, 2011. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.
2The Application arises out of the applicant’s employment and termination of employment with the Town of Oakville. The applicant alleges that his employment was terminated in March 2010 on the basis of race, colour, place of origin, ethnic origin, and record of offence. The applicant states that the facts of the Application are part of another proceeding that is still in progress and refers to a grievance alleging that the applicant’s employment was terminated without just cause contrary to article 33 and “any other article” of the collective agreement between the respondent and Canadian Union of Public Employees, Local 1329 (the “Union”). The applicant included a copy of the grievance in his Application along with a letter dated May 21, 2010 from his Union to the respondent stating that the grievance was being referred to arbitration.
3On March 24, 2011, the Tribunal delivered a Notice of Intent to Defer to the applicant, the respondents and the Union. The Notice of Intent to Defer stated that it may be appropriate to defer the consideration of the Application pending the resolution of another legal proceeding, pursuant to Rule 14 of the Tribunal’s Rules of Procedure. All parties were advised of their right to make submissions on the deferral within thirty days of the Notice.
4The respondents have filed submissions. The respondents state that in accordance with the usual practice of the Tribunal and to avoid multiple proceedings on the same subject matter, the Application should be deferred.
5The applicant and Union have not filed submissions and the time for doing so has elapsed.
6The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, even where the facts and issues are not identical, the Tribunal may consider whether it is appropriate to defer to another legal proceeding. Some of the factors that may be relevant in deciding whether to defer are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer the Application, having regard to the status of each proceeding and the steps that have been taken to pursue them.
7I find that it is appropriate to defer the Application to the grievance arbitration process. There is clear overlap between the grievance filed and the Application insofar as the termination is the central factual issue in each. While the grievance document does not expressly refer to the Code, there is no question that an arbitrator has the authority to hear and decide human rights matters raised at arbitration (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42). Finally, based on the submissions filed, it appears that the grievance is proceeding to arbitration. There is therefore no reason to deviate from the normal practice of the Tribunal to defer the Application pending the completion of the grievance arbitration process.
8If the applicant believes, on conclusion of the grievance arbitration process, that the human rights issues raised in his Application have not been adequately addressed, he may ask to have his Application reactivated. Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure outline the procedure by which the Application may be reactivated after the conclusion of a grievance arbitration process.
Dated at Toronto, this 9th day of May, 2011.
‘Signed by”
Ian R. Mackenzie
Vice-chair