Edwards v. Carillion Services, 2013 HRTO 704

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Horatio Edwards

Applicant

-and-

Carillion Services Inc.

Respondent

Interim Decision

Adjudicator: Ena Chadha

Date: April 25, 2013

Citation: 2013 HRTO 704

Indexed as: Edwards v. Carillion Services

WRITTEN SUBMISSIONS

Carillion Services Inc., Respondent

Dan Shields, Counsel

CUPE Local 145, Affected Party

Paul O’Ryan, Counsel

1This Application was filed on January 17, 2013, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of race, disability, association with a person identified by the Code and reprisal. The applicant alleges that he was treated unfairly and harassed and ultimately dismissed. The Application notes that there is a grievance pending regarding the termination of his employment. The applicant provided copy of the grievance dated January 26, 2013.

2The Tribunal issued a Notice of Intent to Defer on February 26, 2013 inviting the parties and the applicant’s union, as an affected party, to file submissions with respect to whether or not the Application should be deferred pending the conclusion of the grievance process.

3The respondent filed submissions on March 26, 2013. The respondent notes that grievance arbitration hearing dates have been held on January 18, March 14 and March 15, 2013 and that the hearing is expected to conclude in July 2013. The respondents request that the Application be deferred on the basis that there is an outstanding grievance relating to the same facts and issues.

4On March 28, 2013, the applicant’s union wrote to the Tribunal indicating that it supports deferral.

Deferral

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

6Some 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.

7The 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.

8It appears that an arbitration hearing addressing the issues related to the applicant’s dismissal is well underway. It is apparent that the issues raised in the Application regarding the applicant’s employment termination are the same as his concerns which are being considered as part of the grievance arbitration. 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.

9Accordingly, this Application will be deferred pending the conclusion of the arbitration process.

ORDERS

10The Tribunal orders that the Application is deferred pending the conclusion of the arbitration process.

11Where 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).

12I am not seized of this matter.