Santoro v. Ontario (Ministry of Labour), 2012 HRTO 1974

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Santoro

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Labour, Renu Kulendran, Michael Chappell, and Henrik Vogt

Respondents

INTERIM DECISION

Adjudicator: Alison Renton Date: October 19, 2012 Citation: 2012 HRTO 1974 Indexed as: Santoro v. Ontario (Ministry of Labour)

WRITTEN SUBMISSIONS

John Santoro, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Labour, Renu Kulendran, Michael Chappell and Henrik Vogt, Respondents

Robert Fredericks, Counsel

Introduction

1This is an Application filed on June 26, 2012 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 reprisal. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of related grievance proceedings.

2The applicant indicates in the Application that the facts of the Application are part of various union grievances that are still in process. Based upon this, the Tribunal issued a Notice of Intent to Defer stating that it may be appropriate to defer the Application pending the resolution of the grievances. The parties, and AMAPCEO – Association of Management, Administrative and Professional Crown Employees of Ontario (“AMAPCEO”), the applicant’s bargaining agent, were given until September 21, 2012 to file submissions with the Tribunal addressing this issue. The Tribunal advised that the respondents are not required, at this time, to file Responses.

3The respondents filed submissions dated September 19, 2012 requesting that the Tribunal defer the Application pending conclusion of the grievance process. In their submissions, the respondents state that since March 31, 2010, the applicant has filed approximately 29 disputes (akin to grievances) under the collective agreement between the corporate respondent and AMAPCEO which raise the same issues as those in the Application. The first grievance was mediated before a Vice Chair of the Grievance Settlement Board (“GSB”) on June 4, 2012 and the applicant attended and was represented by AMAPCEO. The parties agreed to consolidate a number of the applicant’s grievances for the purposes of the mediation. A settlement was not reached at the mediation, but the arbitration was adjourned sine die.

4The applicant objects to his Application being deferred and filed a “reconsideration” of the Tribunal’s intent to defer his Application. In his submissions, the applicant alleges that the respondents and AMAPCEO are failing to accommodate him in the workplace and sets out a chronology in support of these allegations. Further, he alleges that AMAPCEO is not properly representing him, and takes issue with how the mediation before the GSB transpired including allegations that both the corporate respondent and AMAPCEO were bargaining in bad faith.

5AMAPCEO has not filed any submissions and the time for doing so has elapsed.

analysis

6Despite the applicant requesting that the Tribunal “reconsider” its decision to defer the Application, no such decision has previously been made.

7The 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.

8The 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).

9The 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.

10In this case, the applicant has filed almost 30 disputes under the collective agreement between the corporate respondent and AMAPCEO which are then essentially grievances. It is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and in the disputes. I am satisfied that the concerns the applicant raises about AMAPCEO’s representation do not justify a departure from the Tribunal’s normal approach. The matters are still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant’s grievances 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.

11The Application will therefore be deferred pending the completion of the grievance process.

12The 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.