HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jerome Miller
Applicant
-and-
London Transit Commission
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Miller v. London Transit Commission
WRITTEN SUBMISSIONS
Jerome Miller, Applicant ) Michael Klug, counsel
London Transit Commission, )
Respondent ) Frank Angeletti, counsel
1This Application was filed on May 2, 2011 pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in employment on the basis of race, colour, ancestry, place of origin, ethnic origin, disability and reprisal. The respondent filed its Response on September 26, 2011 denying the allegations in the Application. In an Interim Decision dated January 11, 2012, the Tribunal granted the applicant’s request to amend his application. The respondent’s filed an amended Response on January 31, 2012.
2The respondent requested in its Response that the Tribunal defer the Application pending the conclusion of grievances filed by the applicant. The respondent also requested that the Tribunal dismiss the Application in whole or in part pursuant to section 45.1 of the Code and because the applicant signed a settlement on March 2, 2010. This Interim Decision addresses these requests.
3The Tribunal received written submissions from the applicant and the respondent on both these requests. The applicant’s bargaining agent, the Amalgamated Transit Union (the “Union”) filed no submissions.
BACKGROUND
4The applicant is employed by the respondent, the London Transit Commission (the “LTC” or the “respondent employer”) and his terms and conditions of employment are governed by a Collective Agreement between the respondent employer and his Union.
5The Application alleges that the applicant has been the victim of “historical and on-going racial discrimination and harassment” in the course of his employment with the LTC. In the Application the applicant details events of alleged discrimination that occurred starting in 2004.
6The applicant filed a complaint with the Human Rights Commission in January 2006 (the “2006 Complaint”), against the respondent employer and a number of other individual respondents alleging that his rights under the Code had been infringed. The applicant, in accordance with the amendments to the Code, abandoned his 2006 Complaint and filed an Application with the Tribunal (the “Transitional Application”).
7The applicant alleges that the harassment and discrimination continued and that in March 2009, he was assaulted by one of the individual respondents in the Transitional Application, who was a manager of the respondent.
8On June 25, 2009, the applicant filed another Application with the Tribunal (the “June 2009 Application”) against the employer respondent, and the manager who had allegedly assaulted him (the “manager respondent”).
9On March 2, 2010, the applicant entered into a settlement with all of the respondents, except for the manager respondent (who was no longer employed by the respondent employer) with respect to the Transitional Application, the June 2009 Application and “a number of grievances”. The Transitional Application which proceeded against the respondent manager was withdrawn by the applicant on November 23, 2010. The June 2009 Application is proceeding against the manager respondent.
10After March 2, 2010 the applicant filed a number of grievances with respect to numerous issues which arose with respect to his employment. The applicant has not been at work since April 15, 2011. As indicated, the applicant filed this Application on May 2, 2011.
DEFERRAL
11In the Response the respondent takes the position that any allegations in the Application which are covered by grievances which have been resolved are not properly before the Tribunal. Further, it takes the position that other allegations in the Application overlap with the subject-matter of outstanding grievances and the Tribunal should therefore defer to the arbitration of those grievances. The respondent employer has not submitted any documents relating to the processing of outstanding grievances, or indicating that they have been referred to arbitration.
12Counsel for the applicant advises that there are only two remaining outstanding grievances, the others having been either settled or withdrawn. The applicant takes the position that it would be unfair for the Tribunal to defer the Application on the basis of these two outstanding grievances because they are being held in abeyance by the parties until the applicant returns to work.
13The 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). The Tribunal must 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.
14The 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). Deferral suspends the Tribunal’s process pending the outcome of another proceeding. It is aimed at avoiding duplication of legal processes and the risk of conflicting finding of facts.
15I have considered the submissions of the parties with respect to whether it is fair, just and expeditious to defer the Application. The respondent employer does not dispute that the outstanding grievances are being held in abeyance pending the applicant’s return to work. Although the grievance procedure has been engaged by the parties, there is no indication at this time that the parties to the collective agreement intend to refer the grievances to arbitration. Given the absence of any indication that another proceeding is dealing with the issues in the Application, it is not appropriate for the Tribunal to defer this Application. As such, the Application will proceed.
SETTLEMENT
16The respondent takes the position that all allegations that pre-date the March 2, 2010 settlement should be dismissed.
17At paragraph 16 of the Application, the applicant states that he does not complain about incidents that occurred before the March 2, 2010 settlement but rather about the on-going discrimination and harassment which allegedly occurred after March 2, 2010.
18Having considered the submissions of the parties, and the applicant’s confirmation that he is not complaining about any pre-March 2, 2010 conduct it is not necessary for the Tribunal to strike out any part of the Application on the basis of the settlement. If the applicant seeks to call evidence about those previous events in support of his allegations about later events, I will determine any disputes about the relevance or admissibility of such evidence at a later stage.
SECTION 45.1
19The respondent employer takes the position that a number of allegations have been settled during the grievance procedure.
20I find that it is not appropriate for the Tribunal to address this issue on a preliminary basis. I have no documentary evidence establishing that there are any settled grievances which finally dispose of the entire and/or substantially all of the Application. The factual underpinnings of the section 45.1 request to dismiss are intertwined with the merits of the Application and it would not be practicable to hear and decide the request in advance of the hearing on the merits. I therefore make no ruling about whether part of the Application should be dismissed under section 45.1 at this time.
21The request to defer the Application is denied. The request to strike out allegations about pre-March 2, 2010 events is denied, subject to any rulings about the relevance and admissibility of this evidence in relation to the merits of the Application. The request to dismiss part of the Application under section 45.1 will be determined as part of the hearing on the merits.
22This Application will proceed to a three day hearing in London.
Dated at Toronto, this 29th day of March, 2012.
“Signed by”
Geneviève Debané
Vice-chair