Mark Zirger v. CSA Group, 2012 HRTO 1618

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Zirger

Applicant

-and-

CSA Group

Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: August 23, 2012

Citation: 2012 HRTO 1618

Indexed as: Zirger v. CSA Group

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 alleges that he was terminated on the basis of disability following a physical altercation with another employee. That allegation is also the subject-matter a grievance which is ongoing. The applicant’s union, Canadian Union of Public Employees Local 967 (“CUPE”) has been identified as a potentially affected party and is seeking intervenor status.

3The respondent requests that the Application be deferred pending the outcome of the grievance. The text of the grievance makes it clear that the applicant is alleging that his termination was based on his disability and therefore discriminatory. He is seeking that the employer “stop this discriminatory practice, reinstate me immediately to my position and make me whole.”

4The applicant objects to the deferral. In his Reply the applicant indicates that he wishes to pursue his Application because he is seeking a change in the respondent’s “zero tolerance” policy, a remedy which he alleges cannot be achieved in the grievance process.

5Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, on its own initiative or on the request of a party, defer consideration of an application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions. 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 (See Baghdasserians v. 674469 Ontario, 2008 HRTO 404, 2008 HRTO 404). The Tribunal will 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.

6In this case I am satisfied that it would be fair, just and expeditious to defer this Application. The subject-matter of the Application and the grievance are the same and there is no indication that the applicant is dissatisfied with the manner in which the grievance is being advanced by his union. He is seeking a remedy in the grievance process to prevent the respondent from continuing to engage in the alleged discriminatory practice, which could arguably involve the change in policy that the applicant is seeking. In any event, once the grievance process has concluded, the applicant may ask the Tribunal to bring the Application back on and it will be up to another adjudicator to decide whether or not the grievance process has appropriately dealt with the applicant’s allegations.

7The request by CUPE to intervene will be dealt with if and when the Application is re-activated.

8The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which a party may seek to bring the Application back on after the conclusion of the grievance process

9I am not seized.