Barnable v. City of Quinte West, 2012 HRTO 146

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Barnable

Applicant

-and-

City of Quinte West

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: January 19, 2012

Citation: 2012 HRTO 146

Indexed as: Barnable v. Quinte West (City)

1This Application was filed on October 27, 2011, under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application alleges discrimination in employment on the basis of disability. This Interim Decision deals with a Request to Intervene by the applicant's bargaining unit, the Canadian Union of Public Employees Local 799 (the "union") and a request made by the respondent as part of its Response asking that the Application be deferred pending the outcome of a grievance. The applicant filed a grievance in November 2010 alleging that the respondent had failed to accommodate his return to work.

BACKGROUND

2The Application, Response and Request to Intervene all provide narratives as to what occurred between the applicant and the respondent that differ in emphasis and, in some instances, alleged facts. The following information is based on a partial summation of these accounts.

3The applicant has been employed by the respondent as a Water Treatment Plant Operator beginning in July 2001. In January 2007, the applicant commenced a medical leave of absence and underwent surgery on his back. The applicant returned to work later in 2007 and carried out modified work before he was off work again for medical reasons in 2008. While the applicant was absent from work, there were discussions between the parties, with the involvement of medical practitioners, as to the functions and tasks the applicant might be able to do upon his return to work.

4In January 2009, the applicant returned to work but was shortly thereafter put on modified duties because of his medical condition. In August 2009, the applicant commenced another medical leave of absence and had further surgery. The applicant returned to work in March 2010 in a short term modified position until June 2010. It appears that the respondent was of the view that there was no further modified employment it could offer the applicant at that time. It appears the applicant returned to being on Long Term Disability benefits.

5In November 2010, the union filed a grievance on behalf of the applicant alleging that the respondent failed to accommodate the applicant beginning in 2009. In the grievance, the applicant sought a number of remedies, including that the respondent accommodate the applicant in a position suitable to his disabilities.

6The Application alleges that there was a meeting held in December 2010 with the respondent, the union and the applicant at which time the respondent refused an accommodation proposal made by the applicant. The applicant alleges that the respondent told him that they had no duty to accommodate the applicant. The applicant alleges he was obliged to go back to receiving Long Term Disability benefits.

7The respondent alleges that in December 2010 the respondent, applicant and union met and agreed to hold the applicant's grievance in abeyance and that when positions became available with the respondent the respondent would provide job postings directly to the applicant and union in order to allow the applicant the opportunity to apply for these positions. The respondent denies having stated that it had no duty to accommodate the applicant.

8The union alleges that there was a step 3 Grievance meeting held in November 2010 attended by the respondent, the union and the applicant. The union alleges that at the meeting it made several proposals as to how the applicant could be accommodated that were rejected by the respondent who maintained that it had no further positions available for the applicant. The union claims that it has never received a response from the respondent to the Step 3 grievance meeting held in November 2010.

REQUEST TO INTERVENE

9The Union filed its Request to Intervene on December 19, 2011. The Union indicates that it is the bargaining agent for the applicant and provides a brief narrative of what it understands has occurred in the grievance process since the applicant filed his grievance in late 2010.

10The respondent filed a Response to the Request to Intervene stating that it was not opposed the union's request.

11The Request to Intervene is granted. A union almost always has an interest in a human rights application involving a member, and, unless there are exceptional circumstances, the Tribunal will grant the bargaining agent intervenor status when requested. I see no reason, in these circumstances, not to grant the union's request. The full extent of the intervenor's participation in the Tribunal's proceedings will be determined by the Tribunal at the appropriate time.

REQUEST TO DEFER

12The respondent's request to defer is contained in its Response to the Application. The respondent submits that the allegations contained in the Application are based on the same facts as contained in the grievance. The respondent submits that the grievance has been processed through the grievance procedure and that on or about December 6, 2010 the respondent, union and applicant agreed to hold the grievance in abeyance. The respondent submits that the union and the applicant retain the right to proceed with the grievance to arbitration at anytime but have chosen not to.

13The respondent submits that the Tribunal has consistently deferred applications where there has been an ongoing grievance based on the same facts and which alleges breaches of the Code. The respondent submits that an arbitrator appointed under a collective agreement has the power, and responsibility to consider implement and enforce the Code.

14Following receipt of the respondent's Response, the Tribunal wrote to the applicant directing the applicant to file a Reply to the Response which would include submissions on the respondent's request to defer. The applicant filed a Reply which does not include submissions on the issue of deferral nor indicates the applicant's position on the respondent's request.

Analysis and Decision

15The 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). The purpose of deferring an application is to ensure that proceedings dealing with some or all of the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. In each case, the Tribunal must consider, in light of the particular circumstances, whether deferral is the most fair, just and expeditious way of proceeding with the Application. See: Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

16The 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 mere existence of an outstanding grievance will not automatically lead to deferral of an application. See: Krieger v. Toronto Police Services Board, 2008 HRTO 183.

17Some of the factors that may be 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 the application, having regard to the status of each proceeding and the steps that have been taken to pursue them.

18I find that the most fair, just and expeditious way of proceeding in this case is to allow the applicant's Application to proceed. The information before me is that the applicant's grievance has not proceeded in a timely fashion; it has been over a year since there was an apparent Stage 3 meeting. There is no information to indicate that the grievance is active and proceeding to arbitration. In my view, there is no immediate risk that proceeding with the Application at this time will result in concurrent proceedings dealing with some or all of the same issues thereby raising the possibility of inconsistent decisions on facts or law.

19The respondent submits that it is open to the applicant and the union to proceed to arbitration if they so choose. I am mindful of this argument. However, the fact remains that for whatever reasons, it appears that the grievance process has not moved forward and there is no indication that it will promptly address the issues raised by the applicant in his Application. In the circumstances, I find that it would not be fair overall to the applicant to defer to the grievance and arbitration procedure, given the status of this other proceeding. The respondent's request to defer is denied.

20Both parties have indicated to the Tribunal their willingness to participate in mediation. Accordingly, the Tribunal will schedule a mediation.

21I am not seized of this matter.