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HUMAN RIGHTS TRIBUNAL OF ONTARIO
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## B E T W E E N:
Michael Elkins
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Attorney General
Respondent
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## INTERIM DECISION
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Adjudicator: Sheri Price
Date: May 9, 2013
Citation: 2013 HRTO 778
Indexed as: Elkins v. Ontario (Attorney General)
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[1] This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent discriminated against the applicant because of age with respect to employment. Specifically, the applicant, who previously worked for the respondent as a court usher, contends that he was let go from his position because of his age and replaced with someone younger.
[2] On or about July 23, 2012, the applicant’s trade union, Ontario Public Service Employees’ Union (“OPSEU”), filed a grievance on the applicant’s behalf against the respondent employer with respect to the respondent’s failure to place the applicant in a court usher position. Among other things, the grievance alleges that the respondent infringed the applicant’s rights under Article 3 of the applicable collective agreement, which prohibits discrimination on the basis of age as well as other prohibited grounds.
[3] Documentation before the Tribunal indicates that the applicant’s July 2012 grievance was referred to arbitration and that an arbitration hearing in respect of the grievance is scheduled to take place before the Grievance Settlement Board on July 23, 2013.
[4] The respondent requests that the Tribunal defer consideration of the Application, pending the conclusion of the above-noted arbitration hearing on the basis that it raises some or all of the same facts and issues as the Application (“Request to Defer”).
[5] The applicant opposes the Request to Defer. He suggests that the only reason that the July 2012 grievance has been referred to arbitration is because he filed a human rights Application. In addition, he feels that arguments advanced by the union on his behalf during the grievance procedure focused on the job competition process instead of the more relevant human rights issues.
[6] The 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, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.
[7] The facts and issues in this Application overlap significantly with those in the applicant’s July 2012 grievance. Given that the Grievance Settlement Board is scheduled to commence an arbitration hearing in respect of the grievance in less than three months, proceeding with the Application could very possibly lead to inconsistent decisions on the factual and/or legal issues raised in the Application and the grievance. This is particularly so in light of the fact that the Grievance Settlement Board, appointed to hear the applicant’s grievance pursuant to the Crown Employees Collective Bargaining Act, 1993, SO 1993, c 38 (“CECBA”), has full jurisdiction to deal with the applicant’s allegation that the respondent discriminated against him because of age, contrary to the Code (pursuant to s.2 of the CECBA and s.48(12)(j) of the Labour Relations Act, 1995, SO 1995, c 1, Sch A). The primary purpose of deferring an Application is to avoid such potential inconsistency. In all of the circumstances, deferring the Application is appropriate.
[8] The Tribunal orders the deferral of this Application pending the conclusion of the arbitration hearing in respect of the applicant’s grievance. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure available at www.hrto.ca, which outline the process by which the Application may be brought back on after the grievance arbitration has been concluded.
[9] The parties’ attention is also drawn to s.45.1 of the Code which provides that the Tribunal may dismiss an Application where the substance of it has been appropriately dealt with in another proceeding.
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Dated at Toronto, this 9<sup>th</sup> day of May, 2013.
“signed by”
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Sheri Price
Vice-chair
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minicounsel