Devon Nicholson v. The City of Ottawa (Parks Recreation and Cultural Services), 2014 HRTO 852

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Devon Nicholson

Applicant

-and-

The City of Ottawa (Parks Recreation and Cultural Services)

Respondent

-and-

Canadian Union of Public Employees Local 503

Affected Party

INTERIM DECISION

Adjudicator: David Muir

Date: June 11, 2014

Citation: 2014 HRTO 852

Indexed as: Nicholson v. Ottawa (Parks Recreation and Cultural Services)

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 goods and services because of disability and reprisal.

2In his Application the applicant advises that the allegations in his Application regarding his dismissal from employment by the respondent are the subject of a grievance which he has filed. Consequently the Tribunal issued a Notice of Intent to Defer (NOID) the Application pending the conclusion of the grievance proceeding.

3The respondent takes the position that the Application should be deferred. The applicant opposes deferral. The affected party took no position.

4In my view it would be most fair, just and expeditious to defer this Application pending the conclusion of the grievance proceeding.

5The 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.

6However 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).

7In 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.

8In 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 argues that one of the issues he has raised may not be dealt with by the grievance however it is clear that his dismissal from employment is an issue in dispute in both proceedings. In my view these circumstances raise all of the concerns of potential inconsistent results on key findings of fact and misuse of public and private resources arising from concurrent litigation about similar or overlapping facts and issues. For these reasons the Application will be deferred pending the conclusion of the grievance proceeding.

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. 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.

10I am not seized of this case.