Human Rights Tribunal of Ontario
Between:
Kevin Gill Applicant
-and-
The Regional Municipality of York Respondent
Interim Decision
Adjudicator: Douglas Sanderson Date: March 14, 2016 Citation: 2016 HRTO 325 Indexed as: Gill v. York (Regional Municipality)
Written Submissions
Kevin Gill, Applicant Self-represented
The Regional Municipality of York, Respondent Stephen Maio, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, disability and reprisal.
2By letter dated December 18, 2015, the Tribunal sent the parties a Notice of Intent to Defer (“NOID”). In the NOID, the Tribunal advised the parties that it may be appropriate to defer consideration of the Application pending the resolution of another legal proceeding dealing with the subject matter of the Application. The termination of the applicant’s employment, a key issue in the Application, is the subject of a grievance arbitration proceeding that is scheduled to begin on June 20, 2016. The Tribunal directed the parties to make submissions regarding whether deferral was appropriate. By letter dated February 18, 2016, the respondent submitted that deferral was appropriate. In an e-mail message to the Tribunal dated February 28, 2016, the applicant made submissions about the substance of his Application, but did not address the issue of deferral.
Analysis and Decision
3The 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.
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).
5The 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.
6In 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 grievance has also reached the arbitration stage and is clearly further advanced than this Application. In my view, there is no reason to deviate from the Tribunal’s normal practice of deferring to the grievance/arbitration process, particularly in light of the fact that the parties both requested deferral. 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.
7The Application will therefore be deferred pending the completion of the grievance process.
8The 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.
9I am not seized.
Dated at Toronto, this 14^th^ day of March, 2016.
“Signed by”
__________________________________
Douglas Sanderson Vice-chair