Parkinson v. Toronto Transit Commission, 2013 HRTO 1071

Human Rights Tribunal of Ontario

B E T W E E N:

Anthony Parkinson Applicant

-and-

Toronto Transit Commission Respondent

INTERIM decision

Adjudicator: Ena Chadha Date: June 17, 2013 Citation: 2013 HRTO 1071 Indexed as: Parkinson v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Toronto Transit Commission, Mark Wollen and Bob Drouin, Respondents

Steven Lavender, Counsel

1The applicant filed this Application on February 8, 2013, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment on the basis of race, colour, ancestry, place of origin and ethnic origin.

2The applicant was an employee of the organizational respondent's transit system. He alleges that on February 23, 2012, on his way to work, he was subjected to discriminatory remarks with respect to his ethnic background by the bus driver when he attempted to use his employee pass to ride the bus. As a result, an incident ensued which eventually involved the police. The applicant alleges that he was unfairly disciplined and that ultimately his employment was discriminatorily terminated.

3On May 3, 2013, the respondents filed a Response denying the allegations. The respondents allege that the applicant had a significant disciplinary history leading ultimately to his employment termination for cause. The respondents request that the Application be dismissed as having no reasonable prospect of success and because the applicant has launched two civil claims in relation to February 23rd incident, one against the bus driver and one against the police. The respondents also request that the Application be deferred because there is on-going grievance arbitration with respect to the events surrounding the applicant's employment termination. The respondents further request that the individual respondents be removed from the Application.

4On May 7, 2013, the Tribunal forwarded a copy of the Response and issued a Notice of the respondents' request to dismiss and defer. The Notice stated that the respondents have asked the Tribunal to:

• Dismiss the Application on the grounds there are ongoing civil proceedings arising out of the same facts in which the applicant is seeking an order under section 46.1 which has not been finally determined or withdrawn, or which has been settled or where the court has finally determined the issue of whether the right has been infringed [s. 34(11)];
• Dismiss the Application, in whole or in part, on the basis the applicant is party to a settlement, reached during the grievance procedure under the collective agreement [s.45(1)];
• Remove the individual respondents; and
• Defer considering the Application on the basis that there is an ongoing proceeding (arbitration) before another decision-maker which raises some or all of the facts and issues raised in this Application. [s.45 of the Human Rights Code and Rule 14 of the Rules of Procedure].

The Notice directed the applicant to file a Reply and response submissions no later than May 21, 2013.

5The applicant did not file a Reply or submissions in response to the respondents' various requests and the time for doing so has elapsed.

SUMMARY HEARING REQUEST

6The respondents requested that a Summary Hearing be held in this matter on the basis that there is no reasonable prospect that the Application will succeed.

7In accordance with Rule 19A.5 of the Tribunal's Rules of Procedure ("Rules"), the Tribunal denies, without reasons, the respondents' request for a Summary Hearing.

REQUEST TO REMOVE INDIVIDUAL RESPONDENTS

8The Application was filed as against the organizational respondent and two individual respondents who are managers involved in the applicant's discipline and/or grievance appeals.

9The respondents request that the individual respondents be removed from the Application on the basis that neither had any contact with the applicant except for in their professional capacity through the organizational respondent's disciplinary and grievance procedures.

10Pursuant to Rule 1.7 (b) of the Tribunal's Rules, the Tribunal has the power to add or remove a party. In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal identified factors to consider when determining whether a personal respondent should be removed (para. 5):

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
2. Is there any issue raised as to the corporate respondent's deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?
3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
5. Would any prejudice be caused to any party as a result of removing the personal respondent?

11The applicant's allegations against the individual respondents relate to their actions and decisions in the disciplinary process and do not impugn them for anything outside of their management roles.

12Based on the respondents' submissions, it appears that the organizational respondent is prepared to accept any potential liability on behalf of the individual respondents; it can respond to the allegations; and, if required, remedy any violations. It appears that both individual respondents were acting within the scope of their employment duties and authority as managers. The applicant has not asserted any specific prejudice if the individual respondents are removed and I am unable to discern any compelling reason to continue this proceeding against the individual respondents.

13Having considered the Tribunal's the approach to whether an individual is properly named as a personal respondent, I conclude that in the circumstances of this case the individual respondents should be removed from the Application. Consequently, the respondents' request is granted.

DEFERRAL

14Pursuant to Rule 14.1 of the Tribunal's Rules of Procedure, the 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. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

15Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

16The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is an on-going grievance under a collective agreement based on the same facts and issues as raised in the Application. In so doing, the Tribunal has relied on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, wherein the Supreme Court of Canada confirmed 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.

17I find that this Application should be deferred on the basis that there is an on-going grievance arbitration relating to the issues alleged in the Application. Based on the respondent's submissions, it appears that there are grievances addressing the issue of unfair discipline and termination as related to the applicant's human rights concerns and that the arbitration process is well underway. As such, I see no basis to depart from the Tribunal's regular approach to defer an Application where the Application overlaps with an active grievance.

18The Tribunal orders the deferral of the Application pending the conclusion of the grievance process. Where 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).

19Given the Tribunal's decision to defer the Application, the other preliminary issues in relation to sections 34(11) and 45.1 can be addressed if the Application is reactivated.

20The Tribunal orders as follows:

(i) The respondents' request for a Summary Hearing is denied; (ii) The respondents' request to remove individual respondents is granted and the style of cause is amended accordingly; and (iii) The Application is deferred.

21I am not seized.