HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Charles McCartney Applicant

-and-

The City of Toronto Respondents

-and-

Canadian Union of Public Employees, Local 4400 Intervenor

INTERIM DECISION

Adjudicator: Eric Whist Date: January 27, 2012 Citation: 2012 HRTO 175 Indexed as: McCartney v. Toronto (City)

1This Application is made under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application alleges discrimination in employment on the basis of age and on the basis of reprisal or the threat of reprisal. This Interim Decision deals with a Request to Intervene by the applicant's bargaining unit, the Canadian Union of Public Employees, Local 416 ("CUPE" or the "Union") and a Request for an Order During Proceedings by the respondent asking that the Application be deferred pending the outcome of a number of grievances.

BACKGROUND

2At all relevant times the applicant was working in the respondent's Solid Waste Management Services Division, more particularly in its Litter Bin Collection Operation. The applicant's job primarily entailed emptying street bins along a designated route. At the time of the Application the applicant was 53 years old.

3The Application alleges that the applicant was forced to perform unsafe work, and was disciplined when he refused to perform this work. The Application alleges that the real reason for this discipline was because of his age, that the respondent was taking this disciplinary action for the ulterior purpose of terminating the applicant's employment and replacing him with a less expensive, younger worker.

4The Application alleges reprisal on the basis that the applicant was also being disciplined for having previously made complaints under the respondent's workplace human rights policy and workplace violence policy. The Application alleges that these efforts to enforce the applicant's human rights were a factor in the respondent's efforts to discipline the applicant and terminate his employment.

5The Application was filed on April 11, 2011 when, it appears, the applicant was suspended from work for a period of one week. The respondent's Response was filed on August 23, 2011. Significantly, it details a number of additional events that took place between April 11, 2011, the date the Application was filed, and June 21, 2011 when the applicant's employment was terminated. The Response submits that the applicant's employment was terminated because the applicant left his worksite on June 14, 2011 without authorization, was insubordinate, and because the applicant had a significant disciplinary record including three suspensions, two of which occurred in the period of April 11 to June 21, 2011.

REQUEST TO INTERVENE

6The Union filed its Request to Intervene on August 5, 2011. The Union indicates that it's interest is to protect the Collective Agreement and to ensure the integrity of the grievance procedure and arbitration process. The Union indicates that it wishes to ensure that all of its members are properly accommodated within the workplace. It suggests that it has significant expertise in representing employees in workplace disputes and is familiar with the respondent's policies and procedures.

7Neither the respondent nor the applicant have filed responses to the Union's request to Intervene.

8The 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 CUPE Local 416's Request to Intervene. The full extent of the intervenor's participation in the Tribunal's proceedings will be determined by the Tribunal at the appropriate time. However, I have considered the information the Union provides with its Request to Intervene as to its understanding of the applicant's grievances in my consideration of the respondent's Request to defer.

REQUEST TO DEFER

9The respondent filed a Request for an Order During Proceedings on July 21, 2011. The respondent requests that the Application be deferred pending the outcome of the Applicant's seven outstanding grievances. The respondent provides copies of these seven grievances. The respondent also requests further particulars with respect to the applicant's allegations of discrimination based on age. The respondent reiterates its requests to defer and for further particulars in its Response, filed August 23, 2011.

10The applicant filed a brief Reply to the Response on August 23, 2011 in which he refers to the respondent's Request to defer. The Reply does not make it clear whether the applicant opposes the Request to defer.

11The Union also indicates that it does not take a position on whether the Application should be deferred. It does indicate that it filed seven grievances on behalf of the applicant challenging a number of instances of discipline, including disciplinary suspensions and the termination of the applicant's employment. All of these grievances were filed after the applicant filed his Application on April 11, 2011. The union indicates that all seven grievances are outstanding and that they are proceeding through the grievance process. They had not proceeded to arbitration at the time of the Union's Request to Intervene filed on August 5, 2011. There is some information before me to suggest that they are being dealt with as a group (it appears a Step 3 hearing may have been held on July 28, 2011 to consider all seven grievances). The Union notes that none of the grievances specifically allege discriminatory treatment on the basis of age.

Analysis and Decision

12The 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.

13In my view the principal issue I need to consider is the degree to which the issues raised in the Application and the grievances overlap. While it is true that the grievances focus on events after the date the Application was filed, I am nonetheless satisfied that there is an overlap in the issues that the Application and grievances address such that it is appropriate to defer the Application pending the outcome of the grievance process.

14The Application alleges that the applicant was subject to unfair disciplinary action during the period January 3, 2011 to April 11, 2011 and speculates that this is part of the respondent's effort to eventually terminate the applicant's employment. The applicant's grievances are filed from April 14, 2011 to June 15, 2011: the day after the applicant's employment was terminated. I do note that the applicant's grievance, filed on April 14, 2011, alleges that the respondent violated the collective agreement by unfairly and unjustly disciplining the applicant. It appears from the Response that there were some interactions of note between the applicant and the respondent on April 13 and 14, 2011 which, in part, arise in relation to an incident on February 23, 2011. In my view it may well be that the grievance of April 14, 2011 does cover a period in time that overlaps with the period of time covered in the Application.

15However, even if this grievance was filed in reference to events occurring only on April 13 and 14, 2011, I am of the view that there is an ongoing interaction between the applicant and the respondent that dates from the period covered in his Application to the date his employment was terminated that is of a similar kind: an ongoing dispute over how the applicant was carrying out his work. It is significant, in my view, that the applicant speculates in his Application that his disputes with the respondent may lead to the termination of his employment, suggesting that he knew that there would continue to be confrontations between himself and the employer in the period following his Application. In my view, to proceed with the Application at this time would lead to two legal procedures addressing the respondent and applicant's relationship in the relatively brief period of January to June 2011, and that this could lead to inconsistent findings of fact and law. It would not be appropriate for the Application to proceed while the applicant's grievances are proceeding even if they do not focus on precisely the same periods of time given the nature of the issues both processes would be required to address.

16The Union states that the grievances do not raise the issue of age discrimination. Although this is true, all seven grievances do specifically allege that the respondent violated Article 6 of the collective agreement. Article 6 is an anti-discrimination and harassment provision that does refer to age as a protected ground.

17I am satisfied, based on the information before me, that to continue with the Application at this time would not be the most fair, just or expeditious way to proceed. It would be an inefficient and inappropriate use of the resources of the Tribunal given the linked nature of the allegations raised in the Application and those raised in the applicant's grievances.

18It appears that the grievances may proceed to arbitration given that there is no indication that they have been resolved through a step 3 hearing that was scheduled for July 2011. 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, as was affirmed by the Supreme Court of Canada. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. Under these circumstances, I am satisfied that I should follow the Tribunal's general practice and defer the Application given there is an ongoing grievance under a collective agreement based, in some measure, on facts and issues as raised in the Application.

19The Tribunal directs the parties' attention to Rules 14.3 and 14.4 of the Tribunal's Rules of Procedure which outline the process by which the Application may be brought back on after the grievance process has been concluded. I am of the further view that if the applicant seeks to have his Application brought back pursuant to Rule 14 he will need to provide further particulars of his allegations given the general nature of the allegations he has provided in his Application.

20In summary, the Application is deferred. The applicant is directed to provide further particulars as to the specific incidents or actions he alleges were discriminatory in the event he seeks to have his Application considered following the conclusion of the grievance and arbitration process. I am not seized of this matter.

Dated at Toronto, this 27th day of January, 2012.

"signed by"___________

Eric Whist Vice-chair