Theodore Karagias v. The Corporation of Norfolk County, 2013 HRTO 1696

Human Rights Tribunal of Ontario

B E T W E E N:

Theodore Karagias Applicant

-and-

The Corporation of Norfolk County, Kandy Webb, Keith Robicheau, Patti Moore, Jill Steen, Malcolm Lock, Sandy Stevens, Cathy Lanni, Glen Steen, and Karen Boughner Respondents

INTERIM DECISION

Adjudicator: Alison Renton Date: October 8, 2013 Citation: 2013 HRTO 1696 Indexed as: Karagias v. Norfolk (County)

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 encloses a copy of the grievance filed on his behalf by his union, CUPE Local 4700 (the "union"). He requests that the Tribunal defer his Application pending conclusion of the grievance process.

3The Tribunal issued a Notice of Intent to Defer, dated August 30, 2013, stating that it may be appropriate to defer the Application pending the conclusion of the grievance process and requesting that the parties file submissions on this issue by September 30, 2013.

4The respondents filed submissions dated September 30, 2013. They do not oppose the applicant's request that the Application be deferred; however, they note that the subject matter of the grievance may not be completely the same as the issues in the Application. They point out that the scope of the grievance is not clear as it has not yet been litigated.

5The respondents also filed a Request for Order During Proceedings ("RFOP") requesting that the individual respondents be removed as parties from the proceedings. The applicant has not yet filed a Response to the RFOP although as of the date of this Interim Decision, the time for doing so has not elapsed.

6The union also consents to the Application being deferred pending completion of the grievance process.

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 appears that there is some 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. It is not yet apparent whether or not the applicant's grievance will be referred to arbitration. 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 of the Tribunal's Rules of Procedure which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process, including the requirement that a party who seeks to have the Application re-activated must do so within 60 days after the other proceeding has concluded. The respondents' RFOP will be addressed if the Application is brought back on.