Heron v. Canadian Blood Services, 2012 HRTO 2167

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenneth Heron

Applicant

-and-

Canadian Blood Services

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: November 19, 2012

Citation: 2012 HRTO 2167

Indexed as: Heron v. Canadian Blood Services

WRITTEN SUBMISSIONS

Kenneth Heron, Applicant

Self-represented

Canadian Blood Services, Respondent

Martin Hajek, Representative

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 reprisal and discrimination with respect to employment because of association with a person identified by a ground in the Code.

2The Application appears to involve the issues of whether another employee harassed the applicant because of his intolerance of her discriminatory and bullying behaviour towards a transgendered colleague; whether the respondent protected the applicant from that harassment; and, whether the respondent reprised against the applicant for internal complaints he made about a poisoned environment.

3The grievance states that the issues in that proceeding are: 1) policies pertaining to bullying; 2) human rights; and 3) emotional stress.

4A Notice of Intent to Defer was sent to the parties by the Tribunal on June 11, 2012, because the applicant had indicated in his Application that a grievance dealing with the same facts is still in progress. The parties responded to the Notice. The respondent supports the deferral, without reasons, while the applicant opposes it because he believes that the respondent will delay the grievance proceeding, and because he has concerns about his union’s ability to represent him in the grievance proceeding.

DEFERRAL

5The 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.

6The 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).

7The 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.

8In this case, there does not appear to be a dispute that the facts and human rights issues raised in the Application and in the grievances are the same. I am not satisfied that the concerns the applicant raises about delay in the grievance process justify the departure from the Tribunal’s normal approach. The applicant chose to file a grievance that is ongoing. The Application will therefore be deferred pending the completion of the grievance proceeding.

9The 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.

10I am not seized.