Abick v. Ontario (Ministry of Government Services), 2014 HRTO 249

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Scott Abick

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Government Services, Centre for Employee Health, Safety and Wellness

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: March 10, 2014

Citation: 2014 HRTO 249

Indexed as: Abick v. Ontario (Ministry of Government Services)

WRITTEN SUBMISSIONS

Scott Abick, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Government Services, Centre of Employee Health, Safety and Wellness, Respondent

Peter Dailleboust, Counsel

Introduction

1This Application was filed on August 20, 2013, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination on the basis of disability in the area of employment. In particular, the applicant alleges that, in trying to resolve Workplace Discrimination and Harassment Prevention (“WDHP”) issues with the respondent, the respondent subjected him to discrimination by refusing to provide him with documentation in writing, as opposed to verbally, in accordance with the WDHP Policy.

2In its Response to the Application, the respondent submits that the facts of the Application are part of a union grievance proceeding that is in progress. The respondent requests that the Application be deferred pending completion of the grievance process before the Grievance Settlement Board (“GSB”).

DEFERRAL

3The 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.

4The 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.

5The 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.

6In the present case, the respondent submits that the applicant filed a grievance alleging that the respondent violated its WDHP Policy. The respondent also submits that, in his Application, the applicant alleges that the respondent violated the procedural requirements of its WDHP Policy, by not providing reasons, in writing, for its decision to not investigate the applicant’s workplace allegations further. The respondent submits that it will address the issues raised in both the grievance and the Application through the “normal dispute resolution process”.

7In response to the respondent’s deferral request, the applicant submits that the subject-matter of the grievance and the Application are not the same. The applicant, however, asks the respondent to confirm if it will agree to allow the complaints raised in his Application, in regard to the respondent’s failure to accommodate his disability, to be dealt with in addition to his grievance, which is scheduled to be heard by the GSB in April 2014.

8In correspondence dated January 3, 2014, respondent’s counsel indicates that he has had discussions with the representative of the applicant’s union who has carriage of this matter on behalf of the union. Respondent’s counsel states that, for greater certainty, the respondent agrees that, in the interests of reaching a global resolution of the applicant’s complaints, the matter of his “accommodation allegations” will be part of the proceedings currently scheduled before the GSB on April 14, 2014.

9In the circumstances, there appears to be a substantial overlap between the facts and human rights issues raised in the Application and those that are proposed to be addressed in the grievance process, namely the applicant’s allegation that the respondent subjected him to discrimination on the basis of disability in the context of its WDHP Policy procedures. In the circumstances, the Application will be deferred pending the completion of the grievance process.

10If the applicant believes, on conclusion of the grievance process, that his human rights issues have not been appropriately dealt with, he may ask to have his Application brought back on before the Tribunal. The 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 parties should note that a request to reactivate must be filed no later than 60 days after the conclusion of the grievance process.