HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joseph Ciurria
Applicant
-and-
Workplace Safety and Insurance Board
Respondent
INTERIM DECISION
Adjudicator: Mary Truemner
Indexed as: Ciurria v. Workplace Safety and Insurance Board
WRITTEN SUBMISSIONS
Joseph Ciurria, Applicant ) Self-represented
Workplace Safety and Insurance Board, ) Gurjit Brar, Counsel
Respondent )
1The applicant filed this Application on January 23, 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 family status. The applicant alleges that he has been discriminated against in relation to his hours of work and the employer's refusal to provide hours that the applicant has requested to accommodate the caregiving needs for his child.
2On June 12, 2012, the respondent filed a Request for Order During Proceedings, seeking to defer the Application on the basis that the applicant's bargaining agent, CUPE Local 1750, had filed a grievance on his behalf, on December 13, 2011, making an allegation that contains "identical issues with identical underlying facts:"
I have been treated unjustly when the employer… changed my existing work schedule (start/finish times). This is a human rights issue. The employer is not complying with its duty to have [sic] accommodate under the Human Rights Code. I have caregiving needs.
3The respondent listed dates that the Grievance Settlement Board was to hear the applicant's grievance as well as many others of employees who are also disputing their hours scheduled. These dates ended in early September of this year.
4On July 15, 2012, the applicant filed a very brief Response to the Request to defer, stating, "My position is that my issue should be dealt with either [by] the [grievance process] or the Human Rights Tribunal or both, whichever is more expediant."
5The 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.
6Some 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.
7The 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.
8I find that deferral is warranted in the present circumstances. The applicant's grievance was filed prior to the Application and may well be resolved by now. I find that the set of facts and legal issues that underlie the current Application form the basis of the grievance. Particularly given the circumstances of this case where the grievance proceeding is advanced, the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance proceeding.
9The Tribunal orders that the Application is deferred pending the conclusion of the grievance proceeding.
10The Tribunal directs the parties' attention to Rules 14.3 and 14.4 of the Tribunal's Rules of Procedures which set out the process if a party wishes to proceed with an Application pending the conclusion of another proceeding.
11I am not seized of this matter.
Dated at Toronto, this 18th day of September, 2012.
"Signed by"
Mary Truemner
Vice-chair