Costa Petrunti v. Commissionaires Great Lakes Division, 2016 HRTO 1174

Human Rights Tribunal of Ontario

B E T W E E N:

Costa Petrunti Applicant

-and-

Commissionaires Great Lakes Division Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: September 6, 2016 Citation: 2016 HRTO 1174 Indexed as: Petrunti v. Commissionaires Great Lakes Division

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"). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding. The applicant was self-represented when he filed his Application.

2The applicant indicates in the Application that two grievances have been filed by his union, Public Service Alliance of Canada ("the union"), although he submits that the union had not provided him with confirmation that they would represent him or deal with them.

3The respondent filed a Response and a Request for an Order During Proceedings ("RFOP"). In both, the respondent stated that the applicant has filed two grievances, which overlap with the allegations in the Application, and requests that the Tribunal defer the Application pending conclusion of the grievance process. The respondent provided copies of the grievances, as well as a letter from the union to it referring the grievances to arbitration with communications about who it would like the arbitrator to be.

4The Tribunal sent the respondent's Response and RFOP to the applicant and requested that he file a Reply addressing the deferral issue. The union sent correspondence to the Tribunal advising that it was now representing the applicant and later filed a Reply. The Reply is not responsive to the deferral issue.

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 (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.

8In 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 grievances. Both address harassment and discrimination allegations as well as the applicant's termination. The matters are still live and the grievance process has not concluded. If the applicant believes, on conclusion of the grievance 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.

9The Application will therefore be deferred pending the completion of the grievance arbitration process.

10The 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. 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 of Procedure and Forms can be found on its website at www.sjto.gov.on.ca/hrto/.