HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Michael Powell
Applicant
-and-
Toronto Transit Commission
Respondent
Interim Decision
Adjudicator: Ena Chadha
Indexed as: Powell v. Toronto Transit Commission
WRITTEN SUBMISSIONS
Toronto Transit Commission, Respondent
Steve Lavender, Counsel
1The applicant filed this Application on February 27, 2013, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination with respect to employment on the basis of disability. The applicant alleges that, during a grievance meeting, the respondent deemed him a liability because of his disability and that soon thereafter his employment was terminated because of his disability.
2In his original Application, the applicant noted in response to Question 14 of Form 1 that the facts of the Application were part of a grievance with his union, the Amalgamated Transit Union Local 113, which was still in progress. As a result, in its Notice of Incomplete Application, the Tribunal requested the applicant provide a copy of the grievance. However instead of filing such documentation, the applicant re-submitted Question 14 stating that no other proceeding was in progress.
3On March 25, 2013, the respondent filed a Request for an Order During Proceedings (“RFOP”) requesting that the Tribunal order 1.) production of documents, 2.) an extension of time to file its Response and 3.) deferral of the Application pending conclusion of the grievance procedure. The respondent provided copies of various correspondences related to the applicant’s grievance.
4Although the respondent’s RFOP was delivered to the applicant and his union, neither the applicant nor the union filed submissions in response to the requests.
5This Interim Decision will deal only with the issue of whether or not the Application should be deferred pending the conclusion of the grievance process.
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 already 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 this Application should be deferred on the basis that there is an outstanding grievance relating to the termination of the applicant’s employment. In light of the fact that the applicant’s narrative references a Step 3 grievance meeting, it is apparent that the grievance process pre-dates the Application. The respondent’s documentation indicates that parties to the grievance recently participated in mediation. Based on this information, it appears that a grievance addressing the issues related to the applicant’s dismissal is well underway. As such, I see no basis to depart from the Tribunal’s regular approach to defer an Application where the Application overlaps with an active grievance.
10Accordingly, this Application will be deferred pending the conclusion of the grievance/arbitration process.
ORDERS
11The Tribunal orders that the Application is deferred pending the conclusion of the grievance/arbitration process.
12Where 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). Should this Application be reactivated, the Tribunal may proceed to deal with the other preliminary issues raised in the respondent’s RFOP.
13I am not seized of this matter.
Dated at Toronto, this 22^nd^ day of April, 2013.
”signed by”
Ena Chadha
Vice-chair