Lessard v. Ontario (Attorney General), 2012 HRTO 1881

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dennis Lessard

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Attorney General

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: October 3, 2012

Citation: 2012 HRTO 1881

Indexed as: Lessard v. Ontario (Attorney General)

WRITTEN SUBMISSIONS

Dennis Lessard, Applicant ) Self-represented

Her Majesty the Queen in Right )

of Ontario as represented by ) Peter Dailleboust, Counsel

the Attorney General, Respondent )

INTRODUCTION

1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of the Application pending the conclusion of a grievance proceeding.

BACKGROUND

2On May 29, 2012, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), which alleged that the respondent discriminated against him with respect to employment because of his disability and age. Specifically, he alleged that after returning to work following a disability-related leave and shortly before turning 65 years of age, the respondent informed him that he was required to either relocate from Kingston to Ottawa or end his employment.

3On August 14, 2012, the respondent filed a Response, which denied the allegation of discrimination. The respondent stated that the decision to relocate the applicant's position from Kingston to Ottawa was purely a business decision, and was not based on discriminatory factors. The respondent also requested that the Tribunal defer consideration of the Application because the Ontario Public Service Employees Union (the "Union") filed two grievances on the applicant's behalf.

4The respondent attached both grievances to its Response. The first grievance, which is dated February 7, 2012, alleges that the respondent failed to properly serve the surplus pre-notice to him, which precluded him from availing himself of the 10-day notice period in the collective agreement. The second grievance, which is also dated February 7, 2012, alleges that the respondent denied him his entitlement to enhanced severance pay as per the collective agreement. The respondent stated that the grievances are scheduled for mediation at the Grievance Settlement Board (the "GSB") on February 26, 2013.

5On August 28, 2012, the applicant filed a Reply, which admitted that there are two outstanding grievances, but opposed the respondent's request to defer consideration of his Application.

ANALYSIS

6Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal's Rules of Procedure. Rule 14.1 of the Tribunal's Rules provides that the 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. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

7In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be 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 type 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.

8The respondent submitted that the Tribunal should defer consideration of the Application because the allegations raised before the GSB and the allegations raised before this Tribunal arise from the same events and concern the same subject matter; the GSB has jurisdiction to apply the Code and award a full range of remedies; and the applicant has already availed himself of the process before the GSB, which is ongoing.

9The applicant submitted that the Tribunal should not defer consideration of the Application because the subject matter before the GSB (the respondent's alleged failure to follow proper protocols for pre-notice and severance entitlements) and the subject matter before the Tribunal (the respondent's alleged acts of discrimination based on disability and age) are different.

10In my view, deferral is not the most fair, just and expeditious way of proceeding with the Application. Although there are concurrent proceedings before the GSB and the Tribunal which flow from the same event (the end of the applicant's employment), the proceedings are dealing with different issues. Specifically, the proceeding before the GSB is dealing with pre-notice and severance entitlement issues under the collective agreement, while the proceeding before the Tribunal is dealing with discrimination issues under the Code.

ORDER

11The respondent's request that the Tribunal defer consideration of the Application pending the conclusion of the grievance proceeding is denied.

12I am not seized of this matter.