Robert MacLaren v. Town of Arnprior, 2012 HRTO 536

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert MacLaren

Applicant

-and-

Town of Arnprior

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: March 14, 2012

Citation: 2012 HRTO 536

Indexed as: MacLaren v. Town of Arnprior

1The purpose of this Interim Decision is to address the question of whether to defer this Application pending the completion of the arbitration of the grievance based on the termination of the applicant’s employment, which also forms the basis of his Application.

2The applicant filed this Application, dated September 6, 2011, alleging discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In his Application, the applicant advises that his union, the Canadian Union of Public Employees (“CUPE”) has also filed a grievance based on the facts of his Application.

3The Tribunal issued a Notice of Intent to Defer (the “Notice”) on January 17, 2012. The respondent supported deferral. In separate submissions, both the applicant and CUPE opposed deferral.

4The 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.

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.

7The respondent submits that the Application should be deferred pending the outcome of another legal proceeding, which it identified as an unfair labour practice complaint filed by CUPE against it. It states that the applicant’s termination during the “first contract negotiations, statutory freeze period, is one of the significant allegations in the union’s complaint to the Ontario Labour Relations Board” (“OLRB”). It also submits that the OLRB can award similar remedies to this Tribunal in the event it finds that there is wrongdoing on the respondent’s part with respect to the applicant’s termination.

8CUPE and the applicant both submit that the failure on the part of the respondent to refer the applicant’s grievance to arbitration is “just one element of CUPE’s complaint against the Employer.” Moreover, even if it rules in CUPE’s favour, the only remedy available to the OLRB with respect to the applicant would be to refer the grievance filed on his behalf to arbitration. That is, contrary to the respondent’s submissions on this point, CUPE and the applicant state that the OLRB does not have the jurisdiction to hear his grievance and award remedies.

9Moreover, CUPE and the applicant submit that the respondent/Employer takes the position that “an arbitrator is without jurisdiction to determine the grievance because there was no collective agreement in place between the parties.” In essence, this means that the respondent is asking the Tribunal to defer to a proceeding it believes CUPE is without jurisdiction to initiate.

10At this stage, CUPE indicates that it has no dates for the hearing of the unfair labour practice complaint, which was only initiated in December 2011, and cannot give a timeline on the likely resolution of it. Both CUPE and the applicant submit that the respondent’s position on the arbitration has already caused considerable delay in the adjudication of the applicant’s claims of discrimination.

11In light of the uncertainty of the outcome of the unfair labour practice complaint and the timing of the arbitration in the event that CUPE is successful, I am of the view that it would not be fair, just or expeditious to defer the Application. The Application will proceed.

12I am not seized of this matter.