Dan Norland v. The Corporation of the City of Thunder Bay, 2012 HRTO 200

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dan Norland

Applicant

-and-

The Corporation of the City of Thunder Bay

Respondent

INTERIM decision

Adjudicator: Ena Chadha

Date: January 27, 2012

Citation: 2012 HRTO 200

Indexed as: Norland v. The Corporation of the City of Thunder Bay

1This Application was deferred by way of Interim Decision 2010 HRTO 901 pending the conclusion of the applicant’s grievance process.

2On January 2, 2012, the applicant filed a Request for Order During Proceedings requesting that the Tribunal reactivate his Application because there have been no developments with respect to his grievances. The applicant submits that, based on information from the union, his grievances have been placed into abeyance. The applicant provided copies of various medical reports, insurance letters and employment related documents indicating that he continues to have health and accommodation concerns. None of these materials suggest that the applicant’s grievances were withdrawn or concluded.

3On January 11, 2011, the respondent filed a response to the applicant’s request to reactivate the Application. The respondent opposes reactivation. The respondent’s submissions indicate that the applicant’s grievances are still outstanding and that the grievances were referred to arbitration by his union on June 3, 2011. The respondent further submits that as recent as December 2011 the parties were engaged in discussions regarding an alternate job position. The respondent provided a copy of a letter from the applicant’s union, dated June 3, 2011, confirming that the union submitted three grievances to a single arbitrator.

4Rule 14 of the Tribunal’s Rules of Procedure outlines the procedure by which a party may seek to bring the Application back on once the conditions set out in the deferral decision have been satisfied. Rule 14.4 states that:

Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any. (emphasis added)

5The Interim Decision deferring this Application found that the facts and issues raised in this Application are part of the grievance process and ordered that “...the Application will be deferred pending the completion of the grievance proceedings.”

6Based on the parties’ materials, I decline to reactive this Application. A request to proceed with a deferred application can only be granted when the other process, upon which the application was deferred, has been completed.

7The applicant in this instance has not established that his grievance process is concluded. In fact, the respondent’s materials indicate that three grievances remain outstanding and are proceeding to arbitration.

8Deferral 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. To allow this Application to proceed in these circumstances would thwart the Tribunal’s previous order and would result in concurrent legal proceedings. This would effectively disregard the very basis upon which deferral is considered appropriate.

9I appreciate that the applicant’s personal circumstances may be difficult and that he perceives the grievance process to be slow. However, the respondent’s submissions establish that the applicant’s grievances will be proceeding to arbitration. There is no indication that the accommodation issues will not be resolved or dealt with through that process. 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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

10Accordingly, the applicant’s request to reactivate his Application is denied.

11I am not seized of this matter.