Frank Dorsay v. Coach Canada, 2013 HRTO 2027

Human Rights Tribunal of Ontario

B E T W E E N:

Frank Dorsay Applicant

-and-

Coach Canada Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott Date: December 6, 2013 Citation: 2013 HRTO 2027 Indexed as: Dorsay v. Coach Canada

1This is an Application filed on August 7, 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, Canadian Auto Workers (the "union").

3On September 5, 2013, the Tribunal issued a notice of intent to defer the Application pending the resolution of the grievance. The Tribunal requested the parties' submissions on the proposed deferral by October 5, 2013. The applicant did not provide submissions on the deferral question. The respondent provided submissions and agreed the Application should be deferred pending the arbitration of the applicant's grievance.

4The 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.

5The 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).

6The 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.

7In 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.

8The Application will therefore be deferred pending the completion of the grievance process. The 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.

9The issue of the Tribunal's jurisdiction over this Application has been raised. This question will be determined if the Application is brought back on. The jurisdictional question is complex due to the recent decision of the Supreme Court of Canada in Tessier v. Quebec, 2012 SCC 23 and evidence may be required to determine this issue. Should that occur, the Tribunal will issue further direction at that time.