HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Antonios Georgoudakis Applicant
-and-
Toronto Transit Commission, Workplace Safety and Insurance Board and Amalgamated Transit Union, Local 113 Respondents
INTERIM DECISION
Adjudicator: Sheri Price Date: August 14, 2014 Citation: 2014 HRTO 1215 Indexed as: Georgoudakis v. Toronto Transit Commission
WRITTEN SUBMISSIONS
Antonios Georgoudakis, Applicant Self-represented
Toronto Transit Commission, Respondent Patricia Matusiak, Counsel
Amalgamated Transit Union, Local 113, Respondent Dean Ardron, Counsel
Workplace Safety and Insurance Board, Respondent Agnes Wintersinger, Counsel
INTRODUCTION
1This Application was filed on September 3, 2013, under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondents discriminated against the applicant because of disability with respect to employment.
2The applicant worked as a subway driver with the respondent Toronto Transit Commission (“TTC”). The applicant alleges that, not long after he commenced employment with the TTC, he was diagnosed with Post-traumatic Stress Disorder as a result of witnessing and experiencing traumatic incidents at work.
3The main claim in the Application appears to be that the TTC and the Workplace Safety and Insurance Board (“WSIB”) discriminated against the applicant because of his mental disabilities by attempting to force and/or forcing the applicant back to work, even though he was unable to work because of his PTSD and other mental disabilities.
4The applicant has also named his trade union, the Amalgamated Transit Union Local 113 (“ATU”), as a respondent to the Application. The applicant’s main claim against the union is that it infringed his rights under the Code by failing to protect the applicant from the TTC and/or WSIB.
5In a May 20, 2014 Case Assessment Direction, the Tribunal directed that a summary hearing would be convened to determine whether the Application as against ATU ought to be dismissed on the basis that it has no reasonable prospect of success and/or on the basis of delay. That summary hearing is currently scheduled to take place by teleconference on September 26, 2014.
6This Interim Decision addresses whether the Application should be deferred pending the conclusion of an arbitration hearing concerning the termination of the applicant’s employment by the TTC for what the TTC alleges was the applicant’s unsubstantiated absence from work from December 2011 onwards.
DEFERRAL TO GRIEVANCE AND ARBITRATION PROCEDURE
7In November 2013, the respondent TTC terminated the applicant’s employment. The reason for the termination of the applicant’s employment, according to the TTC, was the applicant’s unsubstantiated absence from work from December 2011 onwards.
8The ATU filed a grievance on the applicant’s behalf, alleging that the TTC did not have just cause to terminate the applicant’s employment.
9The grievance was referred to arbitration before a labour arbitrator. The first day of hearing was in June 2014, although the arbitration hearing apparently did not formally commence that day due to certain outstanding production issues to be addressed by the arbitrator later this month. The arbitration hearing is scheduled to continue before the labour arbitrator on December 16 and 17, 2014.
10In an Interim Decision in this matter dated June 30, 2014, 2014 HRTO 960, I sought submissions from the parties on whether the human rights Application should be deferred pending conclusion of the arbitration hearing in respect of the applicant’s termination grievance.
11The applicant opposes deferral of the Application. He submits that there have been serious infringements of his human rights by the respondents, which should be addressed by the Tribunal without further interruptions or delay.
12The ATU also opposes deferral of the Application. It takes the position that deferral of the Application is not warranted because the allegations in the grievance overlap only to a limited extent with the allegations against the TTC in the human rights Application and not at all with the applicant’s allegations against the ATU. The respondent union submits that the September 2014 summary hearing ought to proceed as scheduled to determine whether the Application ought to be dismissed as against it. The respondent union submits that it would be unfair to allow the applicant’s allegations against it to stand unchallenged during the course of what it maintains will be a lengthy arbitration hearing if the Application is deferred and the summary hearing cancelled.
13The respondent TTC supports deferral of the Application, pending the conclusion of the arbitration hearing in respect of the applicant’s termination grievance. It submits that the issues before the labour arbitrator and the Tribunal do overlap and that there is a significant risk of inconsistent factual findings by the Tribunal and the arbitrator in the event that the proceedings before the labour arbitrator and the Tribunal run concurrently.
14The respondent Workplace Safety Insurance Board, though given an opportunity to do so, has not made submissions on the deferral issue. Instead, on July 18, 2014,