HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darryl Murray

Applicant

-and-

Pilkington Glass of Canada Ltd. and Monica Bovett

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: July 13, 2012

Citation: 2012 HRTO 1387

Indexed as: Murray v. Pilkington Glass of Canada Ltd.

WRITTEN SUBMISSIONS

Darryl Murray, Applicant ) Self-represented

Pilkington Glass of Canada and ) Mark D. Contini, Counsel Monica Bovett, Respondents )

1The applicant filed this Application on March 26, 2012, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability. The applicant alleges that the respondents have failed to provide him with appropriate workplace accommodation and failed to return him to work in accordance with his seniority because of his disability.

2On May 3, 2012, the respondents wrote to the Tribunal advising that the correct name of the corporate respondent is “Pilkington Glass of Canada Ltd.” and provided copies of two grievances filed by the applicant regarding issues similar to this Application. The grievances refer to the alleged failure of the employer to fulfill its duty to accommodate and alleged failure to recall the applicant in accordance with his seniority.

3On May 22, 2012, the Tribunal issued a Notice of Intent to Defer indicating that the Tribunal may defer consideration of the Application the pending the resolution of the applicant’s grievances. The Tribunal invited the parties to file submissions with respect to the issue of deferral.

4The respondents submit that the Application should be deferred because the grievances raise exactly the same issues as raised in the Application. The respondents submit that the applicant can obtain the same relief at arbitration as sought before the Tribunal.

5The applicant submits that it is unclear as to when his grievances will proceed to arbitration. The applicant submits that given this uncertainty the Tribunal should not defer the Application.

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). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

7The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is on-going grievance under a collective agreement based on the same facts and issues as raised in the Application.

8Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal 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, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

9The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is on-going grievance under a collective agreement based on the same facts and issues as raised in the Application. In so doing, the Tribunal has relied on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, wherein the Supreme Court of Canada confirmed 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.

10Based on the parties’ submissions and having reviewed the grievances, I conclude that there is significant overlap in the subject matter of the Application and the outstanding grievances and a real concern with respect to parallel proceedings. The allegations in the Application are the very same as the outstanding grievances. The grievances were filed prior to the Application. There is real risk of inconsistent findings of fact and duplication of resources if the current Application was to proceed concurrently with the grievances. As such, the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the applicant’s grievances and the grievance proceedings.

Order

11The style of cause is amended to reflect the corporate respondent’s correct name.

12The Application is deferred until the conclusion of the grievance process.

13Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

14I am not seized of this matter.

Dated at Toronto, this 13th day of July, 2012.

Signed by

Ena Chadha

Vice-chair