Salisbury v. Independent Electricity System Operator, 2014 HRTO 1598

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gavin Salisbury

Applicant

-and-

Independent Electricity System Operator, Liezl Chiu, David Chong-Tai, John Hodgkinson, Douglas Thomas, John Rattray, Terence Young, William Limbrick and Dr. Allan Rosenfeld

Respondents

INTERIM DECISION

Adjudicator: Paul Aterman Date: October 29, 2014 Citation: 2014 HRTO 1598 Indexed as: Salisbury v. Independent Electricity System Operator

WRITTEN SUBMISSIONS

Gavin Salisbury, Applicant Self-represented

Independent Electricity System Operator, Liezl Chiu, David Chong-Tai, John Hodgkinson, Douglas Thomas, John Rattray, Terence Young, and William Limbrick, Respondents Richard Charney and Pamela Hofman, Counsel

1This Interim Decision explains why consideration of this Application, which alleges discrimination with respect to employment because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), is being deferred.

2The applicant works for the corporate respondent as an engineer. With the exception of Mr. Limbrick, who is retired, and Dr. Rosenfeld, who is a family physician, the various personal respondents are managers who work for the corporate respondent.

3The applicant alleges that the respondents have not accommodated a disability that he has and that some of them have retaliated against him for having sought appropriate accommodation. He alleges that Dr. Rosenfeld has collaborated in the refusal to accommodate his disability.

4The respondents other than Dr. Rosenfeld have filed a Response that includes a number of requests. They seek the removal of personal respondents, and the dismissal of parts of the Application for delay and on the grounds that no prima facie case of discrimination is made out. They request dismissal of parts of the Application because they maintain that another proceeding has appropriately dealt with the substance of certain allegations. Finally, they request that consideration of the Application be deferred because there are two grievances filed by the applicant’s bargaining agent that are outstanding and should be resolved before the Application proceeds further.

5The applicant opposes deferral. He maintains that one of the grievances has been withdrawn by the bargaining agent and has provided documentation in support of that assertion. I accept that this grievance is no longer outstanding.

6The remaining grievance is one relating to a requirement to provide a doctor’s note for absences on medical grounds. This grievance is proceeding, but the applicant maintains that the Application should not be deferred because the grievance does not allege a Code violation. Rather, it is confined to alleging a breach of the terms of the collective agreement. The applicant maintains that the grievance is based on a different legal theory than this Application and cites Baghdasserians v. 674469 Ontario, 2008 HRTO 404 as authority for the proposition that deferral should be rejected where the other proceeding is not going to address the alleged Code violations.

7I disagree with the applicant’s analysis. Baghdasserians involved a civil action in which no Code violation was pled. Where a plaintiff in a civil action does not assert a Code violation, a court is not likely to find a violation of its own motion. Here, by contrast, the parallel proceeding is a grievance under the collective agreement. 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). Even if the applicant seeks to avoid an arbitrator ruling on the question of whether the actions of the respondents gave rise to a Code violation, the respondents may seek a ruling on that issue.

8Moreover, while it may be the case that the human rights issues are ultimately not determined by an arbitrator in adjudicating this grievance, there is still a real likelihood that many of the facts and issues that are common to both the grievance and this Application will be decided in the process of determining the grievance. Deferral is used by the Tribunal as a tool to avoid the risk of conflicting factual determinations in two proceedings that are dealing with the same events.

9For these reasons I consider it appropriate for the Tribunal to defer consideration of this Application pending resolution of the outstanding grievance. The various outstanding requests by the respondents, as well as the applicant’s outstanding request to amend his Application, can be addressed once the Application is reactivated.

Order

10The request to defer is granted. Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).