Vasileski v. City of Hamilton, 2012 HRTO 1193

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zoran Vasileski Applicant

-and-

City of Hamilton, Community Services Department, Ontario Works, Heather Russell and Carole Zoghaib Respondents

INTERIM DECISION

Adjudicator: Mary Truemner Date: June 18, 2012 Citation: 2012 HRTO 1193 Indexed as: Vasileski v. City of Hamilton

WRITTEN SUBMISSIONS

Zoran Vasileski, Applicant Self-represented

City of Hamilton, Community Services Department, Ontario Works, Heather Russell and Carole Zoghaib, Respondents Denise Crawford, Representative

Canadian Union of Public Employees, Local 5176, Affected Party Elizabeth Nurse, Counsel

Introduction

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application describes the termination of the applicant’s employment, and indicates that the facts of the Application are part of a union grievance proceeding that is still in progress. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of that proceeding.

2On May 7, 2012, the Tribunal sent a Notice of Intent to Defer to the parties indicating that the Tribunal had determined that it might be appropriate to defer consideration of the Application pending the resolution of another proceeding. The Tribunal invited the parties, and the applicant’s union, Canadian Union of Public Employees, Local 5176 (“the union”), as an affected party, to provide written submissions in response.

POSITION OF PARTIES

3The applicant filed submissions and confirmed that the termination of his employment “belongs to the area that is in [sic] jurisdiction of the Human Rights Tribunal,” and “the reason(s) for my discharge belongs solely to the area of Human Rights.” However, he also argues that the grievance “is about unjustly [sic] termination… and has nothing to do with the Human Rights.” His position is that the grievance process could take approximately one and a half years to get to an arbitration hearing so that deferring the Application until after the completion of the grievance proceeding would mean that the Tribunal would not be dealing with the Application for approximately two years after submission. He argues that this is contrary to the Tribunal’s goal to be expeditious in its proceedings, and the Tribunal therefore should not defer the Application.

4Counsel for the union wrote to the Tribunal to confirm that the union filed a grievance on behalf of the applicant in respect of his termination from employment. The union takes no position with respect to the Notice of Intent to Defer. The union advises that it is currently in the process of setting up a Step 2 Grievance meeting with the respondents, a meeting which is anticipated to be in July 2012. After that meeting, the union will decide whether to refer the grievance to arbitration.

5The respondents made submissions and argue that the Tribunal ought to defer consideration of the Application pending adjudication of the grievance on the basis that the allegations in both the Application and the grievance are essentially the same. The applicant alleges that his employment was unfairly terminated in both the grievance and Application. The respondents point to a letter from the applicant to the City of Hamilton which is attached to the grievance. The letter cites, amongst other reasons for the termination, the applicant’s request for accommodation of a need arising from his disability, and the respondents argue that the applicant has therefore alleged violations of the Code in his grievance which must be addressed by the arbitrator should the grievance proceed.

DECISION

6The 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.

7In this case, most of the facts and issues raised in this Application are part of the grievance process that is still in progress. Since the issues in the Application and the grievance overlap significantly, 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, I find that deferring the Application is appropriate.

8The 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”.

9I am not seized.