Sullivan v. D’Antimo, 2015 HRTO 1147

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Sullivan

Applicant

-and-

Francis D'Antimo, Pat Holland, Angie Appleton, Peter Chatoff and Louise O’Dell

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: August 28, 2015

Citation: 2015 HRTO 1147

Indexed as: Sullivan v. D’Antimo

WRITTEN SUBMISSIONS

Francis D'Antimo, Pat Holland, Angie Appleton, Peter Chatoff and Louise O’Dell, Respondents

Kelly M. McDermott, Counsel

Introduction

1This is an Application filed on May 19, 2015 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal and discrimination in 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 indicates in the Application that the facts of the Application are part of another proceeding that is still in progress, namely a union grievance that has been filed, and requests that the Application be deferred until completion of the grievance process. The applicant filed a copy of the January 26, 2015 grievance.

3The Tribunal issued a Notice of Tribunal Intent to Defer (“the Notice”) on July 20, 2015, seeking submissions from the parties about whether it would be appropriate to defer the consideration of the Application pending the resolution of the grievance procedure. The Tribunal directed the parties to file submissions addressing this issue and stated that the respondents were not required, at this point, to file a Response. The respondents filed submissions.

4The respondents submit deferral is appropriate because the parties are engaged in a grievance process that is set for arbitration in January, 2016, and there is clear overlap between the allegations in the grievance and in the Application.

ANALYSIS

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.

6The 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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

7The 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.

8As stated in Melville v. Toronto (City) 2012 HRTO 22:

Deferral avoids two simultaneous proceedings that may result in conflicting determinations, ensures that the respondent need not be actively defending the same matter in two legal proceedings at the same time, and focuses the Tribunal’s limited resources on cases where it is the only process being pursued. In my view, it is consistent with the Tribunal’s mandate to interpret its rules in a fair, just and expeditious manner to defer a case when a grievance is ongoing, whether or not that grievance has yet been referred to arbitration. The grievance process is a stage in dispute resolution before the matter is referred to an independent third party, but that does not mean that there is no proceeding ongoing. Fairness supports avoiding the duplication of proceedings.

9In 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 as the grievance process has not concluded. In the Tribunal’s process, the respondents have not yet filed a Response.

10It is appropriate to defer the Application pending conclusion of the arbitration process.

11If the applicant believes, on conclusion of that 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 Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. In particular, the parties’ attention is drawn to Rule 14.4 which requires that a request to re-activate a deferred Application must be filed no later than 60 days after the conclusion of the other proceeding.

18I am not seized of this matter.