Merrill v. Liquor Control Board of Ontario, 2012 HRTO 1223

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randy Merrill

Applicant

-and-

Liquor Control Board of Ontario

Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: June 21, 2012

Citation: 2012 HRTO 1223

Indexed as: Merrill v. Liquor Control Board of Ontario

WRITTEN SUBMISSIONS

Liquor Control Board of Ontario, Respondent

Adrienne Couto, 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 disability.

2The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and encloses a copy of the grievance filed on his behalf by his union, the Ontario Public Service Employees Union (the “union”).

3The applicant alleges that the respondent employer failed to accommodate his disability at work and that he lost time at work through lay-off due to this failure. He also indicates that he experienced discrimination due to a poisoned work environment, but the only detail he provides with respect to that allegation is that he was laid off when others were doing overtime on the week-end and that “in the workshop everyone are told to do this and that I feel the environment is poison from changes and new equipment”. By way of remedy, he seeks payment for wages and “pain and suffering”.

4The grievance filed on his behalf relates to an allegation that the respondent employer failed to accommodate him at work, and seeks payment for lost time and accommodation within the restrictions stated by his doctor.

5The respondent employer filed its response, denying that it had discriminated against the applicant in violation of the Code and also submitting that the Application at the Tribunal should be deferred pending the completion of the grievance proceedings. It noted that the grievance was presented at the second stage on February 29, 2012 and that it will be heard at the third stage. If it is not resolved at the third stage, the respondent indicates that the next step is a hearing at the Crown Employees Grievance Settlement Board.

6The Tribunal wrote to the applicant and to the union on April 13, 2012, directing the applicant to file a Reply to the Response, including complete submissions in response to the respondent’s request to defer the application by April 27, 2012.

7No Reply has been filed with the Tribunal, nor has the Tribunal received submissions from the applicant regarding the question of deferral.

8The Tribunal has not received a Request to Intervene from the union, though it has received a letter with contact information from union counsel.

9The 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. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

10The 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).

11The 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.

12In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The matter is still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant’s grievance will be referred to a hearing at the Crown Employees Grievance Settlement Board. But if the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

13The Application will therefore be deferred pending the completion of the grievance process.

14The 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.