Cicchirillo v. Toronto Police Services, 2013 HRTO 2058

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Giuseppe Cicchirillo

Applicant

-and-

Toronto Police Services

Respondent

Interim Decision

Adjudicator: Ena Chadha

Date: December 12, 2013

Citation: 2013 HRTO 2058

Indexed as: Cicchirillo v. Toronto Police Services

WRITTEN SUBMISSIONS

Giuseppe Cicchirillo, Applicant

Muneeza Sheikh, Counsel

Toronto Police Service, Respondent

Amandi Esowanne, Counsel

1The applicant filed this Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 18, 2013, alleging discrimination with respect to employment on the basis of disability.

2The applicant alleges that he was subjected to a poisoned work environment in relation to his disability and unfair performance evaluations, as well as inappropriate medical assessments. The applicant alleges that the respondent failed to address his concerns of harassment and failed to address his disability-related needs.

3The respondent filed a Response on October 21, 2013 and seeks that the Application be deferred pending the completion of a grievance filed on behalf of the applicant. The respondent submits that it was unable to file a comprehensive response because, as a result of a professional standards investigation into the allegations raised in the grievance, it is precluded from conducting an inquiry to elicit facts to support agreement or denial of the Application. As such, the respondent requests that the Application be deferred.

4On November 26, 2013, the applicant filed submissions opposing the request to defer. The applicant confirms that a grievance was filed on July 23, 2013. The applicant submits that this Application should take precedence over the grievance as no steps have been taken by the applicant’s union to advance the grievance in a timely manner. The applicant alleges that he has not been kept apprised of updates regarding the grievance and the grievance process is historically slow. The applicant also submits that would be unfair to defer to the grievance because the union would be the sole decision maker in that matter.

5On November 28, 2013, the respondent wrote to the Tribunal maintaining that the Application should be deferred pending the completion of the grievance process. The respondent submits that it should not be forced to defend itself in two forums.

DEFERRAL

6The 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 (Rule 14.1). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently.

7Some factors that have been identified as 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 types 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

8The Tribunal generally defers applications where the parties are engaged in a concurrent legal proceeding, particularly when the other proceeding is an on-going grievance under a collective agreement based on the same facts and issues as raised in the Application. In so doing, the Tribunal has relied on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, wherein the Supreme Court of Canada confirmed 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.

9I find that it is appropriate to defer this Application. It is apparent that the issues raised in the grievance are identical to the concerns alleged in the Application. While I understand that the applicant is unhappy with his union, however, there is no indication that his human rights issues will not be resolved or dealt with through the grievance process. Although the applicant appears to be dissatisfied with the progress of the grievance, the applicant does not dispute that the alleged facts that form the basis of this Application are the same facts raised as part of the grievance and which are also the subject of the professional standards investigation.

10I appreciate that the applicant has a valid interest in having his Application dealt with expeditiously, but in my view, this interest is outweighed by other factors, including the respondent’s concerns regarding defending itself in parallel proceedings and the fact that the respondent cannot fully answer the applicant’s allegations given the on-going professional standards investigation. In addition, there is potential for duplication of evidence given the overlapping allegations. As such, I see no basis to depart from the Tribunal’s regular approach to defer an Application where there is an outstanding grievance.

11Accordingly, this Application will be deferred pending the conclusion of the grievance/arbitration process.

ORDERS

12The Application is deferred pending the conclusion of the grievance/arbitration process.

13Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

14I am not seized of this matter.