Human Rights Tribunal of Ontario
B E T W E E N:
George Ziegler
Applicant
-and-
The Corporation of the City of Mississauga, Joe Pitushka, Dan Ferguson and Ezio Savini
Respondents
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: Ziegler v. Mississauga (City)
1This is an Application filed on July 31, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses the respondents’ Request to Defer.
2The respondents filed a Request for Order During Proceedings (“RFOP”) in which they request, amongst other issues, that the Application be deferred pending completion of the arbitration process. They submit that the applicant’s bargaining agent, Canadian Union of Public Employees, Local 66 (“the union”) has filed three grievances on behalf of the applicant pertaining to the same issues as those raised in the Application. The grievances, which were appended to the RFOP, are dated March 22, 2012, May 4, 2012, and September 24, 2012 and are proceeding through the grievance and arbitration process in accordance with the collective agreement between the corporate respondent and the union.
3The union filed submissions stating that it does not oppose the respondents’ request to defer.
4The applicant objects to his Application being deferred. He submits that a mediation of at least one of the grievances has taken place which did not result in a settlement and he objects to the settlement position advanced by the corporate respondent during the mediation.
5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
6The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that 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 part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).
7The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.
8In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The matters are still live and the grievance process has not concluded. The fact that the applicant disliked the settlement position advanced by the respondent during the mediation is not sufficient factor to deny the request to defer. It is not yet apparent whether or not the applicant’s grievance will be referred to arbitration. If the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.
9The Application will therefore be deferred pending the completion of the grievance process.
10The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. The union’s Request to Intervene will be dealt with by the Tribunal if the Application is brought back on as well as the other issues raised by the respondents in their RFOP.
Dated at Toronto, this 17^th^ day of January, 2013.
”signed by”
Alison Renton
Vice-chair