Gibson v. Toronto (City), 2012 HRTO 748

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alex Gibson

Applicant

• and-

City of Toronto

Respondent

-and-

Toronto Civic Employees’ Union, Local 416 - CUPE

Intervenor

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: April 16, 2012

Citation: 2012 HRTO 748

Indexed as: Gibson v. Toronto (City)

1This is an Application filed February 28, 2012 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The purpose of this Interim Decision is to consider the Request to Intervene made by the applicant’s union, Toronto Civic Employees’ Union, Local 416 - CUPE (the “union”), and to deal with the issue of whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of another related proceeding.

REQUEST TO INTERVENE

2In this Application the applicant alleges discrimination in employment. He alleges that he was denied necessary accommodations at work, that his employer failed to provide him modified work and denied his bumping rights for reasons relating to his disability.

3The union is the bargaining agent for employees in the applicant’s workplace. The Tribunal, therefore, gave notice of the Application to the union.

4The union seeks to intervene in accordance with Rules 11.2 and 11.3 of the Tribunal’s Rules of Procedure. The union represents the applicant in the ongoing grievance arising out of the facts that give rise to this Application. It has a significant interest in the outcome of the Application, including the remedial orders requested by the applicant. The union’s request to intervene is granted. Given the Tribunal’s decision to defer this Application, the extent and the nature of the union’s participation in the proceeding can be determined when and if the matter is brought back before the Tribunal.

DEFERRAL REQUEST

5The union filed grievance number SWM-11-073, dated August 26, 2011, claiming the respondent city was in violation of a number of terms of the collective agreement, specifically in “denying his (the applicant’s) bumping rights (and) not providing modified work”. The grievance is being processed in accordance with the steps laid out in the collective agreement and is, according to the respondent, presently at step 3 of a 4 step process, with step 4 being a referral to arbitration.

6While the respondent seeks deferral, the applicant made no submissions on the issue of deferral and the union indicated it took no position on the issue.

7The 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). The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. The facts and issues raised by this Application are part of grievance processes that are still in progress. However, the Tribunal must also 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.

8The applicant did not provide any submissions on the issue of deferral although provided the opportunity and his time for doing so has now passed. As a result, he has not identified any particular circumstance which would cause the Tribunal to depart from its normal approach.

9In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the related grievance.

10Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

11I am not seized of this matter.