Miroslav Radic v. The Town of Oakville, 2012 HRTO 690

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Miroslav Radic

Applicant

-and-

The Town of Oakville

Respondent

INTERIM decision

Adjudicator: Ena Chadha

Date: April 4, 2012

Citation: 2012 HRTO 690

Indexed as: Radic v. Oakville (Town)

1This Application was deferred by way of Interim Decision 2011 HRTO 1624 pending the conclusion of the applicant’s grievance process.

2On January 18, 2012, the applicant filed a Request for Order During Proceedings (“Request”) requesting that the Tribunal reactivate his Application because the “all grievance are finished and arbitration is cancelled against my will”. The applicant did not provide any documentation in support of his position.

3On January 31, 2012, the respondent filed a response opposing the applicant’s Request to reactivate the Application. The respondent argues that the Application should not be reactivated because there is currently an appeal before the Workplace Safety and Insurance Appeal Tribunal (“WSIAT”) and also that the respondent is actively engaged in attempting to address the applicant’s accommodation.

4The respondent provided copies of various medical documents, Workplace Safety and Insurance Board (“WSIB”) letters and employment-related documents indicating that the parties continue to be involved in addressing the applicant’s accommodation needs and modified work. In particular, the materials indicate that a WSIB Appeals Resolution Officer decision, dated December 21, 2011, determined that the applicant was entitled to traumatic mental stress benefits. However, none of these materials establish that the applicant’s grievance was withdrawn or the arbitration process has concluded.

5On February 13, 2012, the applicant filed reply submissions and submits that the respondent has not offered him any workplace accommodation. The applicant appears to suggest that there were three grievances filed by the union on his behalf. The applicant provided no information as to the status of these grievances.

6The Interim Decision deferring this Application expressly noted that where a party wishes to proceed with an application which has been deferred, the party must make a request in accordance with Rule 14 of the Tribunal’s Rules of Procedure. Rule 14 outlines the procedure by which a party may seek to bring the Application back on once the conditions set out in the deferral decision have been satisfied. Rule 14.4 states that:

Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any. (emphasis added)

7The Interim Decision deferring this Application found that the facts and issues raised in this Application are part of the grievance process and ordered “...the deferral of the Application pending the conclusion of the applicant’s grievance process.”

8Neither party has provided any evidence that the grievance process has concluded. While the applicant assets that his grievance was “finished” and the “arbitration cancelled”, the applicant did not provide any documentation in this regard and, therefore, has failed to satisfy the criteria for Rule 14. Based on the parties’ materials, I decline to reactive this Application. A request to proceed with a deferred application can only be granted when the other process, upon which the application was deferred, has been completed.

9The applicant has not established that his grievance process is concluded. In fact, the applicant’s reply submissions indicate that there were three grievances. While the respondent’s submissions suggest that the parties are presently involved in addressing the applicant’s accommodation concerns through the WSIB and WSIAT process, the respondent provided no information regarding the applicant’s grievances. It is unclear whether those matters have concluded, are held in abeyance, remain outstanding or are proceeding to arbitration.

10I appreciate that the respondent’s submissions and documentation that the applicant’s accommodation concerns are part of other legal processes before the WSIB and WSIAT; however, the Application was not deferred on the basis of the WSIB claim. Should this Application be reactivated and the respondent continue to have concerns regarding concurrent WSIAT proceedings, the respondent may seek deferral of the Application on that basis.

11Accordingly, the applicant’s request to reactivate his Application is denied.

12I am not seized of this matter.