Karol Sadowski v. City of Hamilton and Patricia Tompkins, 2013 HRTO 1328

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karol Sadowski Applicant

-and-

City of Hamilton and Patricia Tompkins Respondents

INTERIM DECISION

Adjudicator: Maureen Doyle Date: July 30, 2013 Citation: 2013 HRTO 1328 Indexed as: Sadowski v. Hamilton (City)

WRITTEN SUBMISSIONS

Karol Sadowski, Applicant No Submissions

City Of Hamilton, Respondent Jason Green, Counsel

Patricia Tompkins, Respondent No Submissions

Introduction

1This is an Application filed on May 24, 2013 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and the respondent City of Hamilton has provided a copy of the grievance filed on the applicant’s behalf by his union, Canadian Union of Public Employees Local 5167 (the “union”).

3The Tribunal sent a Notice of Intent to Defer to the parties on June 24, 2013, and directed them to file written submissions with the Tribunal no later than 30 days from June 24, 2013, regarding why or why not consideration of this Application should be deferred.

4The respondent City of Hamilton provided submissions on July 24, 2013. It submits that consideration of the Application should be deferred until the grievance process has concluded. It advises that the matter has been referred to arbitration and that a hearing is scheduled to take place on December 10, 2013. It submits that deferral is appropriate as the same facts and issues are raised in the Application as are raised in the grievance, the grievance relies on all relevant articles of the collective agreement, including the article which prohibits discrimination on a prohibited ground under the Code, the types of remedies he seeks in both the Application and the grievance are the same, and it submits therefore it would be more efficient and a better use of judicial and legal resources to defer the Application.

5Neither the applicant nor the personal respondent have filed submissions with the Tribunal.

6The 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.

7The 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).

8The 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.

9In 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. 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.

10The Application will therefore be deferred pending the completion of the grievance process.

11The 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.

12I am not seized.