Christopher Gullins v. Durham Region Health Department, 2012 HRTO 1797

Human Rights Tribunal of Ontario

B E T W E E N:

Christopher Gullins Applicant

-and-

Durham Region Health Department Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle Date: September 20, 2012 Citation: 2012 HRTO 1797 Indexed as: Gullins v. Durham Region Health Department

WRITTEN SUBMISSIONS

Durham Region Health Department, Respondent Kelly M. McDermott, Counsel

Introduction

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 and alleging reprisal. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and encloses a copy of the grievance filed on his behalf by his union, Canadian Union of Public Employees, Local 1764 (the “union”).

3The respondent has filed a Request for an Order During Proceedings (RFOP) requesting that this Application be deferred pending the outcome of the grievance procedure.

4In his Application, the applicant alleges that when he returned to work from a sick leave, the respondent employer did not accommodate him, and it prevented him from returning to work in a timely manner. He alleges that his physician’s recommendations were ignored. He alleges that this was a violation of the Code on the grounds of disability, and he also alleges that this was by way of reprisal for having filed a previous grievance and for having filed a previous “complaint” with the Human Rights Tribunal of Ontario. By way of remedy, he seeks damages for a “gap in compensation” and a further amount for which he has provided no head of damages.

5In his grievance, the applicant alleges that the respondent employer failed to accommodate him “to the point of undue hardship, wilfully created barriers to a safe return to work, failed to accept objective medical [sic] and created undue stress and financial hardship”. By way of remedy, he seeks “immediate accommodation to the point of undue hardship, immediate implementation of a safe RTW”, lost wages, pensions and benefits, and “damages as well as any other remedies necessary for the grievor to be made whole”.

6The applicant’s union has written to the Tribunal, copying the respondent, to confirm that the grievance is currently in the grievance process.

7The applicant has not made submissions in response to the RFOP and the time for doing so has passed.

8The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

9The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed 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 (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

10The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

11In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. No submissions have been made opposing deferral and I am aware of no circumstances which would justify a departure from the Tribunal’s normal approach. The matter is still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant’s grievance will be referred to arbitration. But if the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

12The Application will therefore be deferred pending the completion of the grievance process.

13The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.