Watson v. Niagara Parks Commission, 2012 HRTO 2227

Human Rights Tribunal of Ontario

B E T W E E N:

Timothy Watson Applicant

-and-

Niagara Parks Commission, Gershom Moyo, Dave Morris, John Wallace, Betty Jane Duquette and Debbie Barber Respondent

INTERIM DECISION

Adjudicator: Judith Keene Date: November 28, 2012 Citation: 2012 HRTO 2227 Indexed as: Watson v. Niagara Parks Commission

WRITTEN SUBMISSIONS

Timothy Watson, Applicant Self-represented

Niagara Parks Commission, Gershom Moyo, Dave Morris and John Wallace, Respondents Brian P. Smeenk, Counsel

Introduction

1This is an Interim Decision in respect of an Application filed on April 23, 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 sexual orientation, and reprisal. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The Application alleges that the applicant was transferred to another department following his “whistleblowing” about alleged bullying and other problems in his workplace. He alleges that this constitutes constructive dismissal and that it is related to his sexual orientation. He also alleges that one of the personal respondents made a homophobic remark to him in August of 2011, and that the corporate respondent has done nothing to address this. The applicant indicated that he had filed grievances, and attached copies of the grievances to his Application form.

3On August 14, 2012, the Tribunal sent the parties a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject-matter of the Application. The Notice asked for submissions from the applicant no later than October 5, 2012. Written submissions have been received from the applicant, the corporate respondent, and personal respondents Gershom Moyo, Dave Morris and John Wallace.

4In his response to the Notice, the applicant indicates that the grievances have been set for arbitration on December 4, 2012. The applicant indicates that the grievances do not deal with discrimination based on the ground of sexual orientation. However the grievances numbered 2012 – 0217 – 0003, 0002, and 0005, which, respectively, allege “failure to provide a harassment free workplace”, “failure to provide appropriate accommodation and sick leave benefits” and “failure to remedy a poisoned work environment“ cite the Ontario Human Rights Code along with other legislation.

5The 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).

6The 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.

7In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. I am satisfied that the concerns the applicant raises about the Union’s position on his grievance do not justify a departure from the Tribunal’s normal approach. The matter is still live and the arbitration date is very close.

8If the applicant believes, on conclusion of the grievance process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

9The Application will therefore be deferred pending the completion of the grievance process.

10The 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.

11I am not seized.