Joseph Malcolm v. City of Cornwall, Cornwall SD&G EMS, 2012 HRTO 1622

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joseph Malcolm

Applicant

-and-

City of Cornwall, Cornwall SD&G EMS

Respondent

INTERIM DECISION

Adjudicator: Keith Brennenstuhl

Date: August 24, 2012

Citation: 2012 HRTO 1622

Indexed as: Malcolm v. Cornwall (City)

WRITTEN SUBMISSIONS

City of Cornwal, Cornwall SD&G EMS, Respondent

JD Sharp/Porter Heffernan, Counsel

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 in employment on the basis of disability and creed. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of an ongoing grievance.

2On June 29, 2012, the Tribunal sent a Notice of Intent to Defer to the parties indicating that the Tribunal had determined that it might be appropriate to defer consideration of the Application pending the resolution of another legal proceeding dealing with the subject-matter of the Application. The Tribunal directed the parties to deliver and file any written submissions which they wished to make in respect of the deferral issue by August 8, 2012.

3The applicant indicates in his Application that the facts of the Application are part of a union grievance filed by CUPE on behalf of the applicant. The applicant enclosed a copy of the grievance with the Application.

4The applicant did not file submissions with respect to the deferral issue in response to the Tribunal’s Notice of Intent to Defer. The respondent takes the position that the Application should be deferred on the basis that the issues in the grievance are the same as those raised in the Application.

5The Tribunal may defer consideration of an Application on such terms as it may determine, on its own initiative or at the request of a party (Rule 14.1). Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer an Application where there is ongoing grievance proceeding based on the same facts and issues. However, the Tribunal must also consider whether deferral is the most fair, just and expeditious way of proceeding with the Application.

6Some, if not all, of the facts and issues raised in this Application are part of grievance proceeding. Both the Application and the grievance proceeding relate to an allegedly poisoned work environment. Since the issues in the Application and the grievance proceeding overlap significantly, proceeding with the Application at the Tribunal could very well lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievance proceeding. The primary purpose of deferring an Application is to avoid such potential inconsistency. I find that, in all of the circumstances, deferring the Application to the completion of the grievance proceeding is appropriate.

7The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance proceeding. The Rules of Procedure are available on the Tribunal’s website, www.hrto.ca.

8I am not seized.