Jahn v. Regional Municipality of Waterloo, 2014 HRTO 620

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gregory Jahn

Applicant

-and-

Regional Municipality of Waterloo

Respondent

-and-

Unifor Local 4304

Affected Party

INTERIM DECISION

Adjudicator: David Muir

Date: May 1, 2014

Citation: 2014 HRTO 620

Indexed as: Jahn v. Regional Municipality of Waterloo

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2In its Response (Form 2) the respondent sought the dismissal of the Application pursuant to s. 45 of the Code pending the conclusion of a grievance arbitration related to the same facts and issues as are raised in the Application.

3The applicant opposes the request based on his understanding that the filing of an Application with the Tribunal suspends the grievance procedure. The respondent points out that pursuant to the collective agreement which governs this issue as between the workplace parties the filing of a complaint with the Ontario Human Rights Commission would suspend the grievance procedure but as the grievance in question has been referred to arbitration the filing of this Application has no effect on that process.

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.

5However the Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts. 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).

6In any case where the parties are already engaged in a concurrent legal proceeding in which they are raising the same 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 issues covered by the Application and those referred to in the grievance. The applicant’s concern is a reasonable one however it appears that it based on incomplete understanding of the collective agreement. On the strength of the respondent’s position that the filing of this Application is not itself an impediment to the grievance proceeding to arbitration this Application is deferred pending the conclusion of that proceeding.

8The 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 other matters raised by the respondent and the affected party will be dealt with by the Tribunal if the Application is brought back on.

9I am not seized of this case.