HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Donald Bur
Applicant
-and-
Public Guardian and Trustee
Respondent
INTERIM DECISION
Adjudicator: Ken Bhattacharjee Date: November 28, 2013 Citation: 2013 HRTO 1974 Indexed as: Bur v. Public Guardian and Trustee
WRITTEN SUBMISSIONS
Donald Bur, Applicant ) Self-represented
Public Guardian and Trustee, Respondent ) George Parris, Counsel
1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of the Application pending the conclusion of a grievance proceeding.
2The applicant is employed as legal counsel with the respondent, and is a member of the Association of Law Officers of the Crown (“ALOC”).
3On October 1, 2011, February 9, 2012, and July 18, 2013, ALOC filed three grievances on the applicant’s behalf. The first two grievances alleged that the respondent’s disciplinary actions against the applicant violated the Collective Agreement, and the third grievance alleged that the respondent’s failure to provide him with medically necessary accommodations to enable him to return to work violated the Collective Agreement and the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
4On August 16, 2013, the applicant filed an Application with this Tribunal under s. 34 of the Code, which alleged that between 2010 and 2013, the respondent harassed and discriminated against him with respect to employment because of his disability, and subjected him to reprisals. He summarized his allegations of harassment, discrimination, and reprisal as follows:
Prior to becoming ill and requiring accommodation, I had no difficulty whatsoever with my employer. Once I returned to work and sought accommodation, my employer (consistent with the practice it has recently had with other employees who sought accommodation) began to be hypercritical of minor aspects of my practice, began to micromanage my practice, reduced my contact with colleagues and began disciplinary proceedings over minor issues. Eventually, the employer’s conduct resulted in me developing another illness and having to take time off sick. When I had sufficient distance, and the proper medication, that would allow me to return to work under the medically recommended accommodation that I have a different manager, the employer refused to accommodate me.
(...)
The [respondent], particularly through the current acting legal director, has a history of taking reprisals against individuals who have sought accommodation. In my particular case, he reduced my contact with my colleagues, began to micromanage my practice, became hypercritical of minor aspects of my practice and began to impose disciplinary processes. [Emphasis added]
5On September 12, 2013, the Tribunal’s Registrar issued a Notice of Intent to Defer, which requested written submissions from the parties and ALOC on the issue of whether it is appropriate for the Tribunal to defer consideration of the Application pending the resolution of another legal proceeding dealing with the subject-matter of the Application. The parties filed submissions, but ALOC did not, and the time for doing so has now passed.
6Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules. Rule 14.1 of the Tribunal’s Rules of Procedure provides that 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. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.
7In *Baghdasserians v. 674469 Ontario*, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:
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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
Some of the factors that may be 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 type 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.
8The Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. See *Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324*, 2003 SCC 42. 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. See *Tekes v. Markham (Town)*, 2009 HRTO 1665 at para. 7.
9In its submissions, the respondent stated that the Tribunal should defer consideration of the Application because there is substantial overlap between the subject matter of the grievances and the subject matter of the Application, the grievances are ongoing, and the respondent and ALOC are commencing the mediation/arbitration process on an expedited basis.
10In his submissions, the applicant stated that the Tribunal should not defer consideration of the Application because the subject matter of the Application is much broader than the subject matter of the grievances, and the remedies sought in the Application are more extensive than the remedies sought in the grievances. He stated that the more narrow proceeding should not be used to delay or defer the broader application, and that the best fit to deal with the broader issues is this Tribunal. He also stated that a hearing before an arbitrator has not been set, and will likely be spread over many months, which means that if the Application is deferred, there will be a significant delay in resolving the issues in the Application.
11In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. There is an ongoing grievance proceeding, which was started before the filing of this Application, and the arbitrator has the authority to interpret and apply the Code. In addition, although the facts, issues and remedies raised in the grievances are narrower than those raised in the Application, there is a clear overlap between several of the key facts, issues and remedies raised in the two proceedings. Specifically, the facts and issues relating to discipline and a return to work have been raised in both proceedings, and remedies for reinstatement, loss of income, and injury to dignity have been raised in both proceedings. This clearly raises the potential for duplication of evidence, and the possibility of inconsistent findings of fact and law. Furthermore, although the subject matter of the Application is broader than the subject matter of the grievances, the applicant has failed to explain, and I do not see, how the issues in the two proceedings can be parsed if the two proceedings are running concurrently.
12Although the applicant has expressed concern that deferral will lead to a significant delay in resolving the issues in his Application, there is no evidence that he has asked ALOC to withdraw the grievances or taken other steps to end the grievance proceeding. In essence, he wants two proceedings dealing with similar issues to be running concurrently.
13In my view, the applicant has not identified a compelling circumstance which would cause the Tribunal to depart from its normal approach. Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance proceeding.
14Pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules and Forms can be found on its website.
15I am not seized of this matter.
Dated at Toronto, this 28th day of November, 2013.
“signed by”
__________________________________
Ken Bhattacharjee
Vice-chair