Sambhi v. Canadian Blood Service, 2013 HRTO 352

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Charanjit Sambhi

Applicant

-and-

Canadian Blood Service

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: February 28, 2013

Citation: 2013 HRTO 352

Indexed as: Sambhi v. Canadian Blood Service

WRITTEN SUBMISSIONS

Charanjit Sambhi, Applicant

Self-represented

Canadian Blood Service

Sarah A. Eves, Counsel

Ontario Public Service Employees Union, Affected Person

Adrienne Liang, Representative

Introduction

1The purpose of this Interim Decision is to determine whether this Application should be deferred pending the resolution of the grievance filed on behalf of the applicant.

2By Application dated, September 20, 2012, the applicant alleges that the respondent discriminated against him in employment on the ground of disability contrary to the Human Rights Code, R.S.O. c. H.19, as amended (the “Code”). Specifically, the applicant claims that the respondent failed to properly accommodate him after a workplace injury in 1999. He also claims that in 2011 a supervisor/trainer made harassing comments and assigned him work that exceeded the physical restrictions established after his workplace injury. Finally, he claims that the respondent discriminated against him when it refused to return him to a position he had previously held with the respondent.

3In his Application, the applicant stated that his union, the Ontario Public Service Employees’ Union, had declined to file a grievance on his behalf. However, on January 2, 2013, the union filed a grievance on behalf of the applicant. The grievance challenges the respondent’s failure to advise him that his former position was made redundant. The grievance also claims that the respondent failed to accommodate the applicant and subjected him to a course of harassment, bullying and discrimination contrary to the Code.

4On January 29, 2013, the respondent requested that the application be deferred pending the outcome of the grievance process.

decision

5The 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 in accordance with Rule 14.1 of the Tribunal’s Rules of Procedure. Deferral of an application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. 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 a part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. Thus, the Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

6Since the Application and the grievance raise the same issues, proceeding with the Application could lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievance. As a result, I find it appropriate to defer this Application pending the completion of the grievance process in this matter.

7It should be noted that, where 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).

8I am not seized of this matter.