Daniel Smyth v. Liquor Control Board of Ontario, 2014 HRTO 1268

Human Rights Tribunal of Ontario

B E T W E E N:

Daniel Smyth Applicant

-and-

Liquor Control Board of Ontario Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: August 27, 2014 Citation: 2014 HRTO 1268 Indexed as: Smyth v. Liquor Control Board of Ontario

WRITTEN SUBMISSIONS

Daniel Smyth, Applicant Self-represented

Liquor Control Board of Ontario, Respondent Justin Diggle, Counsel

1This is an Application filed on June 11, 2014 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 deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and requests deferral of the Application pending the resolution of the grievance proceeding. The applicant provided a copy of the grievance filed on his behalf by his union, the Ontario Public Service Employees Union (the “union”), which confirms that subject matter of the grievance is the same as this Application, i.e., the termination of his employment.

3The Tribunal issued a Notice of Intent to Defer the Application and invited the parties and the union to file written submissions regarding whether the Tribunal should defer the Application by August 18, 2014. The respondent filed submissions in which it advised that the grievance has proceeded to arbitration stage. The respondent submitted that the applicant alleges in both his grievance and this Application that the termination of his employment violated the Code. The respondent therefore submitted that the Tribunal should defer the Application to avoid unnecessary duplication of proceedings and possibility of inconsistent results and remedies.

Analysis and Decision

4The 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.

5The 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).

6The 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.

7In 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 grievance has also reached the arbitration stage and is clearly further advanced than this Application. In my view, there is no reason to deviate from the Tribunal’s normal practice of deferring to the grievance/arbitration process, particularly in light of the fact that the parties both requested deferral. If the applicant believes, on conclusion of the grievance/arbitration process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

8The Application will therefore be deferred pending the completion of the grievance process.

9The 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.

10I am not seized.