Dziewir v. Liquor Control Board of Ontario, 2014 HRTO 900

Human Rights Tribunal of Ontario

B E T W E E N:

Drake Dziewir

Applicant

-and-

Liquor Control Board of Ontario and Albert Salmon

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: June 18, 2014

Citation: 2014 HRTO 900

Indexed as: Dziewir v. Liquor Control Board of Ontario

WRITTEN SUBMISSIONS

Drake Dziewir, Applicant

Self-represented

Liquor Control Board of Ontario, Respondent

Paul Macchione, Counsel

1This is an Application filed on March 27, 2014, under s. 34 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. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant alleges that the respondent failed to accommodate the applicant when he wished to return to work following a long absence caused by an eye injury. The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress. On April 24, 2014, the Tribunal sent the parties a Notice of Intent to Defer (the "Notice"), which indicated that it may be appropriate to defer the Application pending the resolution of the grievance. The Tribunal directed the parties to file submissions regarding whether the Tribunal should defer the grievance by May 26, 2014. On April 29, 2014, the applicant filed a letter from the respondent denying the applicant's grievance at the second stage of the grievance process, but did not file submissions regarding the issue of deferral. The organizational respondent filed its submissions on May 27, 2014.

3The organizational respondent submitted that the applicant's grievance and his Application to the Tribunal relate to the same facts and human rights issues. The organizational respondent noted that if the applicant's grievance is not resolved in the grievance process it will proceed to a hearing before the Grievance Settlement Board, which is empowered to interpret and apply the Code. The organizational respondent also noted that the grievance process was engaged before the applicant filed this Application and submitted that the orderly administration of justice favours deferral to the grievance process. The organizational respondent submitted that allowing the Application to proceed prior to the conclusion of the grievance process would result in unnecessary duplication of proceedings and the possibility of inconsistent results and remedies.

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.

5The 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).

6The 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.

7In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance The matter is still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant's grievance will be referred to the Grievance Settlement Board. But if the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

8The Application will therefore be deferred pending the completion of the grievance process.

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.