Victor Haddrall v. Toronto Marriott Bloor Yorkville, 2013 HRTO 1116

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Victor Haddrall

Applicant

-and-

Toronto Marriott Bloor Yorkville

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: June 25, 2013

Citation: 2013 HRTO 1116

Indexed as: Haddrall v. Toronto Marriott Bloor Yorkville

WRITTEN SUBMISSIONS

Victor Haddrall, Applicant

Self-represented

Toronto Marriott Bloor Yorkville, Respondent

Nicole Aumell, Representative

1This is an Application filed on April 29, 2013 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. The applicant is represented in the workplace by his bargaining agent UNITE HERE LOCAL 75 (“the union”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant worked for the respondent until he was terminated in October 2012. The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress. He provided the Tribunal with a copy of a letter, dated May 14, 2013, from the union advising that his grievance has been referred to arbitration.

3The Tribunal sent the applicant, the respondent and the union a Notice of Intent to Defer (“NOID”) dated May 17, 2013 in which the Tribunal stated that it may be appropriate to defer consideration of the Application following resolution of another legal proceeding (that being the grievance). The Tribunal advised the respondent that it was not at this point required to file a Response. Both the applicant and the respondent filed written submissions addressing the issues in the NOID.

4The applicant requests that the Application not be deferred. He was a 27 year employee with the respondent and subsequent to his termination has been unable to obtain employment insurance benefits or find other employment. He has waited for seven months for closure in this matter and it weighs heavily upon him and his well-being.

5The respondent submits that the Application should be deferred. It notes that a grievance has been filed, pertaining to the same subject-matter as the issues raised in the Application, which has been referred to arbitration by the union.

6The union has not filed any submissions and the time for doing so has elapsed.

7The 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.

8The 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).

9The 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.

10In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The matter is still live and the grievance process has not concluded as the grievance has been referred to arbitration, although an arbitrator has not yet been selected. But if the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

11The Application will therefore be deferred pending the completion of the grievance process.

12The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.