Conrad Rattray v. City of Toronto and Joseph Donahue, 2015 HRTO 110

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Conrad Rattray

Applicant

-and-

City of Toronto and Joseph Donahue

Respondents

-and-

Toronto Civic Employees Union, Local 416

Intervenor

INTERIM DECISION

Adjudicator: Alison Renton

Date: January 23, 2015

Citation: 2015 HRTO 110

Indexed as: Rattray v. Toronto (City)

1This Application alleges discrimination with respect to employment because of race, colour, and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant sent in correspondence, dated September 7, 2014, requesting that his Application be deferred pending conclusion of the grievance process. In a Case Assessment Direction (“CAD”) dated December 5, 2014, the Tribunal directed the respondents and the intervenor to file submissions in response to the applicant’s request to defer. The union, the respondent City of Toronto (“the City”) and the personal respondent filed submissions. The applicant responded to the personal respondent’s submissions.

3The intervenor provided information about four grievances that it has filed pertaining to the applicant, including one relating to a suspension and one relating to a termination. It submits that it takes no position on whether or not the Application should be deferred pending conclusion of the grievance process.

4The respondent City also filed submissions supporting deferral of the Application. It submits that it expects that the grievances will proceed to arbitration and will be adjudicated by an arbitrator.

5The personal respondent appears to oppose deferral. He submits that he does not want the Tribunal’s process to be “dragged on”, and wants it resolved as soon as possible. He submits that the grievances pertain to different issues from those in the Application.

6The applicant sent an email responding to the personal respondent’s submissions. He states that he does not want the personal respondent to email him, and submits that, in his view, the personal respondent’s conduct will be addressed during the grievance and arbitration process.

ANALYSIS

Communicating by email

7With respect to the personal respondent contacting the applicant by email, while the applicant did indicate on the Application that his preferred method of contact was mail, he did provide an email address. Furthermore, the applicant has emailed the other parties and vice versa and I do not see any reason, at this point, to direct the personal respondent from emailing the applicant with respect to the Tribunal’s proceedings.

Deferral

8The 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.

9The 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).

10The 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.

11In this case, it is apparent that there appears to be overlap between some of the facts and human rights issues covered by the Application and those referred to in the grievances. The matter is still live and the grievance process has not concluded. It is uncertain whether the grievances will be referred to arbitration. If the applicant believes, on conclusion of the arbitration process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

12The Application will therefore be deferred pending the completion of the arbitration process.

13Pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules and Forms can be found on its website at www.hrto.ca.

14I am not seized with this matter.