HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kevin Fehr
Applicant
-and-
Securitas
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Fehr v. Securitas
WRITTEN SUBMISSIONS
Kevin Fehr, Applicant
Susan Houston, on the applicant’s behalf
Securitas, Respondent
Daniel McDonald, Counsel
1This Application alleges discrimination with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Amongst other things the applicant alleges that his termination from employment was discriminatory.
2On January 28, 2015, the Tribunal issued a Notice of Intent to Defer the Application on the basis that it appeared that there was an outstanding grievance regarding the applicant’s termination from employment. The respondent filed submissions in support of deferring the Application and confirmed that the grievance has been referred to arbitration and that an arbitrator has already convened one day of hearing. The Applicant opposes deferral on the basis that the Union will not be taking the position that the applicant’s termination was contrary to the Code during the arbitration hearing.
Decision
3In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following comments about deferral at paras. 18-19:
Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.
4The 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.)
5It is not determinative of the issue of deferral that the Union is not raising a breach of the Code in the grievance arbitration proceeding. In this case, it is apparent that there is substantial overlap between the facts and allegations covered by the Application and those referred to in the grievance. It would not be constructive to have two proceedings consider concurrently the same facts, including the reasons for the applicant’s termination from employment, as this may lead to contrary findings and decisions. Therefore, I find it is most fair, just and expeditious to defer this Application.
6Accordingly, the Application is deferred pending the conclusion of the grievance arbitration proceeding. The Tribunal directs the parties’ attention to Rule 14 of the Tribunal’s Rules of Procedure which sets out the procedure if a party wishes to proceed with an application that has been deferred pending the conclusion of another proceeding.
7I am not seized.
Dated at Toronto, this 10^th^ day of March, 2015.
“Signed by”
Geneviève Debané
Vice-chair