Lavoie v. Greater Sudbury Police Services Board, 2012 HRTO 2039

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Lavoie

Applicant

-and-

Greater Sudbury Police Services Board, Greater Sudbury Police Service and Frank Elsner

Respondent[s]

INTERIM DECISION

Adjudicator: Mary Truemner

Date: October 25, 2012

Citation: 2012 HRTO 2039

Indexed as: Lavoie v. Greater Sudbury Police Services Board

WRITTEN SUBMISSIONS

Gary Lavoie, Applicant

Self-represented

Greater Sudbury Police Services Board, Greater Sudbury Police Service and Frank Elsner, Respondents

David Migicovsky, Counsel

1This is an Application filed on May 22, 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 on the basis of disability, family status, marital status, age and reprisal. While the applicant characterized the allegations with reference to goods, services and facilities, it is apparent that the allegations pertain to his employment. This Interim Decision deals with the respondents’ request that the Application be deferred.

Deferral

2The respondents filed a Response on August 10, 2012, and have requested in the Response that the Application be deferred pending the outcome of grievance proceedings. The only submissions with respect to this request follow question 8 on the Response form which indicates that the respondents are to describe another proceeding that deal with the same facts as the Application and that is still in progress. The submissions state:

Sudbury Police Association [the applicant’s union]. A grievance has been submitted regarding the entitlement of the Applicant to sick leave under the Collective Agreement.

3Upon reviewing the applicant’s Application, it is unclear as to whether the applicant is making any disability related allegations that the respondents have discriminated against him in regards to his denial of “sick leave”. The narrative in the Application describes, amongst other things, the respondents’ involvement in the insurer’s denial of the applicant’s claim for short-term disability benefits. In response to questions on the Application form about why the applicant is alleging discrimination because of disability, the applicant writes:

The Service wanted to interview me with respect to the allegations by my ex-spouse. My being on leave meant they could not force me to be interviewed. I believe that this interference was effectuated to force me to respond to the allegations while I was not mentally fit to do so, which put me at a serous disadvantage as I was under far too much stress to be able to focus on anything…

[In response to the question of whether the respondents tried to meet special needs]: I requested my interview dates be postponed until I felt I was mentally fit to participate. I submitted a doctor’s note supporting this request. My lawyer submitted a letter to Manulife, requesting reconsideration.

[In response to the question of whether the respondents’ efforts to meet the applicant’s needs were enough]: I feel their harassment was (and continues to be) an effort to force me to retire. I have 30 years (unblemished, and decorated) service to this Police Service. The allegations my ex-spouse (and her family) have brought forth since she was terminated from the Service will be costly to investigate and litigate, and I believe that the Service is using this as a reason to force me into retirement.

4In response to the request to defer, the applicant states in his Reply that he is opposing the request “as the grievance outlined in the response is a separate issue and does not address my claims of harassment or discrimination as outlined in my application form as submitted in May of 2012.” He states that the grievance is about whether he is entitled to time off and short term disability benefits, whereas the Application is about whether the respondents harassed him in relation to his medical state.

5I find, however, that his allegations of harassment in relation to his disability substantially overlap with the grievance because the applicant states in his Reply, “Their direct interference and communication with Manulife to have my benefits denied/revoked, is targeted harassment, reprisal and bullying, and not a “routine or random check”, as they have alleged.” The applicant is clear that he seeks to have that alleged harassment adjudicated at the Tribunal.

6The 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). Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. 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 a part of the collective agreement. See, Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 and O’Brien v. Burlington (City), 2009 HRTO 1818. Thus, 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, the Tribunal must also 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 this case, I find that there is significant overlap between the facts and issues pertaining to the grievance and to the disability allegations raised in this Application. While the grievance will not deal with some of the other facts and issues raised in the Application, (those related to the other grounds), proceeding with the Application at the Tribunal could very possibly lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievance. The primary purpose of deferring an Application is to avoid such potential inconsistency. In all of the circumstances, I find that deferring the Application is appropriate.

Order

8The Application is deferred pending the completion of the grievance process. Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (see Rules 14.3 and 14.4, available on the Tribunal’s website).

9I am not seized.