Mills v. BFI Canada Inc., 2012 HRTO 1183

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tyler Mills

Applicant

-and-

BFI Canada Inc. and Andre Rondeau

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: June 15, 2012

Citation: 2012 HRTO 1183

Indexed as: Mills v. BFI Canada Inc.

WRITTEN SUBMISSIONS

Tyler Mills, Applicant

Self-represented

BFI Canada Inc. and Andre Rondeau, Respondents

Daniel Leone, Counsel

1This is an Application filed on February 17, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability, sexual harassment and reprisal. The respondents were to have filed a Response by June 12, 2012, but requested an extension, and filed a Request for Order During Proceedings to have the Application deferred pending the outcome of grievance proceedings. They note that a hearing before an arbitrator has been set for June 20, 2012. The respondents attached to their Request a copy of a Grievance Form in which the applicant claims, “The [respondents] violated the collective agreement and the human rights code by not providing me with suitable work or accommodation to meet my disability.”

2In response to the Request, the applicant notes that the grievance does not deal with his allegations in the Application with respect to sexual harassment or reprisal, but he consents to the deferral of the Application. Certainly, most of the Application deals with failure to accommodate disability which, as noted above, is alleged on the Grievance Form.

3The 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 (Rule 14.1 of the Tribunal’s Rules of Procedure). Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. 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 a part of the collective agreement. See, Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 and O’Brien v. Burlington (City), 2009 HRTO 1818. Thus, the Tribunal will generally defer an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also 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.

4In this case, there is significant overlap between the facts and issues raised in this Application and those raised in the grievance. Accordingly, proceeding with the Application at the Tribunal could very possibly lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievance. The primary purpose of deferring an Application is to avoid such potential inconsistency. In all of the circumstances, particularly given the proximity of the arbitration date, I find that deferring the Application is appropriate. However, the respondents are directed to file their Response by August 1, 2012 or within two weeks of the arbitrator releasing his or her decision, whichever is sooner.

5The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance and arbitration procedure. The Rules of Procedure are available on the Tribunal’s website, www.hrto.ca under “New Applications”.

6I am not seized.