Trus v. Formacon Construction, 2016 HRTO 1587

Human Rights Tribunal of Ontario

B E T W E E N:

Michael Trus

Applicant

-and-

Formacon Construction

Respondent

-and-

Labourers’ International Union of North America, Local 506

Intervenor

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: December 8, 2016

Citation: 2016 HRTO 1587

Indexed as: Trus v. Formacon Construction

WRITTEN SUBMISSIONS

Michael Trus, Applicant

Self-represented

Formacon Construction, Respondent

Deborah Hudson, Counsel

Labourers’ International Union of North America, Local 506, Intervenor

Michael Hancock, Counsel

Introduction

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 grievance proceeding.

2The applicant indicates in the Application that at the time of the alleged discrimination, he was a member of the Labourers’ International Union of North America, Local 506 (the “Union”).

3On October 24, 2016, the Tribunal issued a Notice of Intent to Defer the Application pending resolution of another legal proceeding (ongoing grievance).

4The respondent supports deferral of the Application on the basis that the Union filed a grievance on August 24, 2016, in relation to the termination of the applicant’s employment on August 8, 2016. The grievance alleges the applicant’s termination was in violation of the collective agreement and/or the Code. The respondent submits the subject matter of the grievance overlaps significantly with the subject matter of the Application and many of the remedies sought in the grievance have also been sought in the Application.

5The applicant and the Union oppose deferral of the Application. The Union submits the Application deals with allegations of harassment and discrimination during employment; it does not raise issues concerning the termination of the applicant’s employment.

6The 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.

7The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. 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, there is no substantial overlap between the grievance and the Application. The grievance relates to the termination of the applicant’s employment in August 2016 and all of the remedies sought relate to the termination. Conversely, the Application alleges harassment and discrimination during the period June 2015 to June 2016, prior to the termination of the applicant’s employment. The remedies sought in the Application relate to the harassment. There are no remedies sought relating to the termination of employment in August 2016 in the Application. Because there is no overlap between the grievance and the Application, there is no basis to defer the Application.

9The parties also provided submissions on whether the Application should be deferred pending resolution of various claims filed by the applicant with the Workplace Safety Insurance Board (the “WSIB”). At this stage in the proceedings, it is not entirely clear what issues are currently before the WSIB. In the absence of clear information concerning the WSIB matters, there is no reason to defer to the WSIB.

10For these reasons, I am exercising my discretion to not defer the Application.

order

11The Application will not be deferred.

12The respondent must file a Response to the Application within 35 days of the date of this Interim Decision.