HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jean-Yves Bernard
Applicant
-and-
Lakehead University, Brian Stevenson and Rodney Hanley
Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Bernard v. Lakehead University
1The applicant has filed an Application alleging amongst other things that his termination from employment was on the basis of his ethnic origin and reprisal.
2The Tribunal sought submissions from the parties with respect to the issue of the deferral of the Application. The parties agree that there are at least four outstanding unresolved grievances involving the applicant including one with respect to the termination of his employment. However, the parties object to the deferral of the Application.
3The applicant submits that deferral is not appropriate on the basis, amongst other reasons, that the grievances will not address the personal respondents’ conduct and all of the human rights issues.
4The respondents submit that the Tribunal should not defer the Application but instead should schedule a summary hearing to dismiss the Application for various reasons.
DECISION
5The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1 of the Tribunal’s Rules of Procedure). The Tribunal must consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.
6In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following comments about deferral at paras. 18-19:
Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.
7The 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.)
8In this case, it is apparent that there is substantial overlap between the facts and allegations covered by the Application and those referred to in the grievances. It would not be constructive to have two proceedings consider concurrently the same facts as this may lead to contrary findings and decisions. I also note that in this matter, the arbitrator will have the jurisdiction to address all claims, including alleged violations of the collective agreement. Therefore, I find it is most fair, just and expeditious to defer this Application. With respect to the respondents’ position that the Application should be dismissed on preliminary issues, the Tribunal does not usually address these requests if it determines that it is appropriate to defer.
9Accordingly, the Application is deferred pending the conclusion of the grievance process. The Tribunal directs the parties’ attention to Rule 14 of the Tribunal’s Rules of Procedure which sets out the procedure if a party wishes to proceed with an application that has been deferred pending the conclusion of another proceeding.
10I am not seized.
Dated at Toronto, this 19^th^ day of March, 2014.
“Signed by”
Geneviève Debané
Vice-chair