Darren Foster v. City of Barrie, 2013 HRTO 1655

Human Rights Tribunal of Ontario

B E T W E E N:

Darren Foster

Applicant

-and-

City of Barrie

Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: October 2, 2013

Citation: 2013 HRTO 1655

Indexed as: Foster v. Barrie (City)

1This is an Application filed on July 19, 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 related grievance proceedings.

2The applicant indicates in the Application that the facts of the Application are part of union grievance proceedings that are still in progress, and has provided a copy of the grievances filed on his behalf by his union, Canadian Union of Public Employees Local 2380 (the “union”). He indicated in his Application that he was not seeking deferral.

3On August 21, 2013, the Tribunal sent a Notice of Intent to Defer (NOID) to the parties, inviting the applicant, the respondent, and the union to make submissions regarding why consideration of the Application should or should not be deferred. The respondent filed submissions on September 20, 2013, supporting deferral pending the conclusion of the grievance process. Neither the applicant nor the union filed separate submissions regarding this issue.

4In his Application, the applicant alleges that the respondent has reprised against him, contrary to the Code. He alleges that his work environment has become poisoned. He states that his work was scrutinized more carefully commencing in the fall/winter of 2011 and he makes several allegations regarding the respondent’s actions while he was away from work due to stress for three months commencing August 2012. He also makes allegations with regard to the respondent’s actions upon his return from sick leave. He also alleges that upon his return to work he made an “unofficial complaint” regarding harassment he had experienced at work prior to going off sick, and he alleges that the respondent did not properly investigate his complaint.

5The applicant provided copies of two grievances filed on his behalf by his union. One grievance dated November 27, 2012, alleges that the respondent employer failed to protect him from harassment and failed to accommodate him for stress, failed to administer its “Workplace Human Rights Program in a fair and unbiased manner”, and did not investigate his allegations of harassment. The other grievance, dated April 12, 2013, alleges that the employer improperly disciplined him and he appears to allege that in doing so, it violated the “Canadian Human Rights Act as well as the Corporations Work Place Human Rights Program”.

6The respondent submits that this matter should be deferred pending the completion of the grievance process. It advises that a February 2014 arbitration date has been scheduled for the November 2012 grievance and that the April 2013 grievance is proceeding to arbitration. It submits that deferral is appropriate as the arbitration matter is further advanced than the Tribunal’s process in this matter. It also submits that arbitrators have jurisdiction to consider all allegations relating to a breach of the Code, and to award remedies where necessary. It submits that though the grievances also raise broader allegations of violations of the collective agreement, the same facts and issues raised in the Application are raised in the grievances. Further, it submits that as the issues in the grievances are broader than the issues in the Application, the grievance matters will require a hearing regardless of the outcome of the Application. It also submits that the remedies requested by the applicant are identical in the grievances and the Application.

7The applicant made submissions on October 1, 2013, submitting that the Application should not be deferred as it is a “very short synopsis of what has been occurring her” and he wishes to “present these important details to the tribunal”. He submits that there has been “bullying and harassment in the actual complaint meetings” and he seeks resolution of his dispute from an external body.

8The 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.

9The 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).

10The 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.

11In this case, it is apparent that there is substantial overlap between the facts and issues covered by the Application and those referred to in the grievances. Though the applicant references his desire to present “important details” to the Tribunal, the decision regarding deferral is made on the basis of the facts and issues raised in the Application. Further, I note that one of the grievance matters is scheduled to be heard in February, 2014, and I am satisfied that the grievance proceedings are further advanced than is this Application. I am not persuaded that there is anything in this Application to justify a departure from the Tribunal’s normal approach. The matter is still live and the grievance process has not concluded. 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.

12The Application will therefore be deferred pending the completion of the grievance process.

13The 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.