Human Rights Tribunal of Ontario
B E T W E E N:
Harry Tait
Applicant
-and-
Algonquin College of Applied Arts and Technology
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Tait v. Algonquin College of Applied Arts and Technology
WRITTEN SUBMISSIONS
Algonquin College of Applied Arts ) and Technology, Respondent ) Kecia Podetz, Counsel
1The applicant filed this Application on April 2, 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 sex and age. The applicant alleges that the respondent has refused him teaching assignments because of male gender and 65 years of age. The applicant notes that the facts of the Application are part of a grievance that is still in progress.
2On June 12, 2012, the Tribunal issued a Notice of Intent to Defer indicating that the Tribunal may defer consideration of the Application pending the resolution of another legal proceeding dealing with the subject matter of the Application. The Tribunal invited the parties and the affected party, the applicant’s union, to file submissions with respect to the issue of deferral.
3On June 20, 2012, the respondent wrote to the Tribunal advising that it supports deferral of the Application because the applicant’s grievance, which is scheduled for hearing commencing September 5, 2012, is based on the same facts as alleged in the Application.
DECISION
4The 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.
5Some 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.
6The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is an 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.
7The applicant provided a copy of the grievance dated January 6, 2012. The grievance expressly cites section 5 of the Code and alleges discrimination on the basis of age and gender.
8Having reviewed the materials in the file and the respondent’s submissions, I conclude that there is significant overlap in the subject matter of the Application and the grievance. The allegations of age and gender discrimination in the Application are the very same as the outstanding grievance. The grievance was launched 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 grievance, which is scheduled to proceed to hearing in the upcoming months. As such, the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the applicant’s grievance.
ORDER
9The Application is deferred until the conclusion of the grievance process.
10Where 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).
11I am not seized of this matter.
Dated at Toronto, this 14th day of August, 2012.
“Signed by”
Ena Chadha
Vice-chair```