Gallina v. Ontario (Minister of Child and Youth Services), 2012 HRTO 1784

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louis Gallina Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Child and Youth Services Respondent

INTERIM DECISION

Adjudicator: Eric Whist Date: September 19, 2012 Citation: 2012 HRTO 1784 Indexed as: Gallina v. Ontario (Minister of Child and Youth Services)

WRITTEN SUBMISSIONS

Her Majesty the Queen in Right of Ontario as respesented by the Minister of Child and Youth Services, Respondent

Omar Shahab, 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 with respect to employment because of disability. This Interim Decision addresses the respondent’s request to defer the Application pending a proceeding before the Grievance Settlement Board (“GSB”).

REQUEST TO DEFER

2The respondent’s request to defer is made as part of its Response to the Application.

3The Response provides the following information. The respondent terminated the applicant’s employment as a Youth Services Officer on June 14, 2009. The applicant’s bargaining agent, The Ontario Public Service Employees Union, (“OPSEU”) grieved the respondent’s decision to terminate the applicant’s employment. The matter proceeded to a hearing before the GSB. In a decision dated February 24, 2011 the GSB ordered the applicant reinstated to a substantially equivalent position that did not involve direct contact with residents in a facility or other specified clients. The Vice Chair of the GSB who issued this decision retained jurisdiction over all matters involving the interpretation and application of his February 24, 2011 decision.

4The respondent offered the applicant a position it determined was an appropriate, substantially equivalent position. The applicant and OPSEU have challenged whether this is an appropriate position, in part because the offered position is alleged to contravene the applicant’s “WSIB restrictions”. OPSEU has requested that the GSB reconvene to consider the assignment of the applicant to this position and a GSB hearing was scheduled for September 4, 2012.

5The respondent submits that the subject matter of the Application is the same as the subject matter that OPSEU will raise before the GSB on September 4, 2012. The respondent submits that GSB arbitrators have the full jurisdictional authority to interpret and apply the Code. The respondent requests the Application be deferred pending the outcome of the applicant’s September 4, 2012 proceeding before the GSB.

6On August 24, 2012 the Tribunal issued a Notice to Defer to the applicant. It provided the applicant with a copy of the Respondent’s Response and directed the applicant to file a Reply to the Response including compete submissions in response to the respondent’s Request to Defer. The applicant has not filed a Reply, as directed.

DECISION

7The 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. Given this purpose, the Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, 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.

8In my view, the principal issue I need to consider is the degree to which the issues raised in the Application and the applicant’s proceeding before the GSB overlap.

9The Application provides a brief narrative of events from the applicant‘s employment being terminated on January 6, 2010 to the respondent offering the applicant a position as a grounds/maintenance worker on April 19, 2012. The Application is not particularly clear on what specific actions of the respondent the applicant is alleging constitute discrimination based on disability. However, I am satisfied that there is enough information provided in the Application to conclude that the applicant is alleging that the substantially equivalent position being offered by the respondent does not accommodate his medical restrictions related, it appears, to a workplace injury. I am of the view that there is indeed a substantive overlap in the subject matter of the applicant’s current proceedings before the GSB and his Application before the Tribunal. I am satisfied that the applicant’s proceeding before the GSB will address issues related to whether the position offered by the respondent accommodates the applicant’s disability.

10Given these circumstances I order the deferral of the applicant’s Application pending the conclusion of his September 4, 2012 proceedings before the GSB. Deferring the Application will ensure that proceedings dealing with some or all of the same issues will not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. I further note 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. I am satisfied that deferring the Application is the most fair, just and expeditious way of proceeding.

11The 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 applicant’s proceedings before GSB has been concluded.

12I am not seized of this matter.