Perpich v. South Essex Community Council, 2014 HRTO 1014

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joseph Perpich

Applicant

-and-

South Essex Community Council and Jennifer Moore

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: July 14, 2014

Citation: 2014 HRTO 1014

Indexed as: Perpich v. South Essex Community Council

INTRODUCTION

1This is an Application filed on October 10, 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 on the basis of age and disability, and reprisal, in employment.

2This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

REQUEST TO DEFER

3In their Response to the Application, the respondents ask that the Tribunal defer the Application pending completion of a union grievance. They also submit that some of the allegations in the Application are either outside of the Tribunal’s jurisdiction, have been the subject of an earlier Application to the Tribunal which was settled, or are untimely.

4In his Reply to the respondents’ Response, the applicant submits, among other things, that he does not want the Application to be deferred, and that the outcome of the outstanding grievance is irrelevant and has no direct bearing on this Application.

5By Case Assessment Direction (“CAD”) dated May 16, 2014, the Tribunal sought an update from the parties and the applicant’s union as to the status of the applicant’s grievance, and provided them with an opportunity to file additional submissions on the issue of deferral.

6In his submissions in response to the CAD, the applicant submits that the pending grievance and upcoming arbitration have no bearing on the Application.

7The respondents, on the other hand, submit that deferral is appropriate. They submit that a January 4, 2013 grievance filed on the applicant’s behalf concerns the employer’s denial of the use of sick time for scheduled medical appointments, and that

allegations in the Application concerning the employer’s denial of accommodation of the applicant’s medical condition have the same factual underpinnings. They also submit that the Application and the grievance raise the same issues for determination, concerning the interpretation and application of a collective agreement, and that the grievance is scheduled to be heard at arbitration on September 12, 2014. The respondents attached a copy of the grievance to their submissions.

8The applicant’s union confirmed that the grievance is scheduled to be heard on September 12, 2014.

ANALYSIS AND DECISION

9The 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.

10The 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).

11The 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.

12In this case, there appears to be a significant overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. While the Application includes a number of allegations during the time period of January 7, 2009 to August 16, 2013, it appears that some of the main allegations in the Application relate to the applicant’s attendance at medical appointments during work hours, and the alleged denial of his use of sick time or personal time to attend appointments. The grievance was also filed approximately nine months before the Application was filed, and is scheduled to proceed to arbitration in approximately two months. In my view, in all of the circumstances, it is appropriate to defer the Application pending completion of the related grievance proceedings.

13The Application will therefore be deferred pending the completion of the grievance process.

14The 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 applicant’s Requests for Orders During Proceedings filed May 6 and June 6, 2014 can be addressed by the Tribunal if the Application is brought back on.