Timothy Baker v. Liquor Control Board of Ontario, 2012 HRTO 1165

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Timothy Baker

Applicant

-and-

Liquor Control Board of Ontario

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: June 13, 2012

Citation: 2012 HRTO 1165

Indexed as: Baker v. Liquor Control Board of Ontario

WRITTEN SUBMISSIONS

Timothy Baker, Applicant

Walter Hohman, Representative

Liquor Control Board of Ontario, Respondent

Justin Diggle, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of family status.

2On March 12, 2012 the Tribunal issued a Notice of Intent to Defer this Application pending the resolution of two grievance arbitrations dealing with the same subject matter as the Application.

3The parties have provided their submissions. The applicant opposes deferral on the basis that the grievance procedure has been subject to considerable delay. The respondent supports deferral on the basis that the issues raised in the grievances are identical to the issues raised in the Application and that it would not be fair, just or expeditious to allow both sets of proceedings to run concurrently.

4The 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.

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. 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 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.

7In this case, it is apparent that there is no dispute that the facts and human rights issues raised in the Application and in the grievances are virtually identical. I am not satisfied that the concerns the applicant raises about delay in the grievance process justify the departure from the Tribunal’s normal approach. The applicant has chosen to file grievances and they remain live matters. The Application will therefore be deferred pending the completion of the grievance processes.

8The 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.

Other Matters

9The respondent has filed a Request for Order During Proceeding (Request) seeking the early dismissal of the Application on the basis that it was filed beyond the time limit prescribed by section 34 of the Code. The applicant has not responded to the Request. In all of the circumstances I find that the most fair, just and expeditious manner of proceeding is to defer the respondent’s Request pending the deferral of the Application.