Morrison v. Powerline Plus Ltd., 2016 HRTO 370

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Morrison

Applicant

-and-

Powerline Plus Ltd.

Respondent

-and-

Labourers International Union of North America, Local 183

Affected Party

INTERIM DECISION

Adjudicator: Bruce Best Date: March 22, 2016 Citation: 2016 HRTO 370 Indexed as: Morrison v. Powerline Plus Ltd.

WRITTEN SUBMISSIONS

Robert Morrison, Applicant Giuseppe Agostino, Counsel

Powerline Plus Ltd., Respondent L. A. Liversidge, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to 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 and/or a related appeal before the Workplace Safety and Insurance Board ("WSIB").

Grievance

2The union commenced a grievance in September 2015. The union asked the respondent to waive the time limits relating to filing. The respondent refused to do so, which meant that if the matter were referred to arbitration, the arbitrator would have to decide as a preliminary issue whether to exercise discretion to extend the timelines in order to hear the grievance on the merits. In light of the respondent's position, the union decided not to refer the matter to arbitration, but rather it filed this Application with the Tribunal where there were no timeliness issues.

3The applicant and the union acknowledge that there is considerable overlap between the issues in the Application and in the grievance. However, they argue that in the circumstances of this case it is not appropriate to defer, given that the respondent has indicated that it will challenge the timeliness of the grievance.

4They have, however, made it clear that the Application is being pursued before the Tribunal without prejudice to the union's right to refer the matter to arbitration if it should so choose, and that the grievance has not been withdrawn.

5The respondent notes that the issues and remedies sought in the grievance are exactly the same as those sought in the Application. It further notes that a labour arbitrator has the jurisdiction, under s.48 (16) of the Labour Relations Act, S.O. 1995 c.1 Shed. A, ("LRA"), to permit the grievance to proceed even if the timelines under the collective agreement had not been followed. It argues that the Tribunal should adopt its normal approach and defer pending the outcome of the grievance process.

WSIB Proceedings

6The respondent has also sought to defer pending the outcome of the WSIB process on the basis that the facts set out in the Application relate almost exclusively to his WSIB claim. The respondent argues that the WSIB process currently underway is addressing the question of whether the respondent is able to accommodate the applicant's restrictions in the workplace, and that this is the central issue in the Application.

7The applicant and the union take the position that the only issue before the WSIB is the narrow question of whether the respondent offered the applicant suitable employment in September 2015. They argue that the WSIB will not address the key issues in the Application of why the applicant was laid off in January 2015, nor will it address the allegations of discriminatory comments and/or harassment directed towards the respondent during the August and September return to work meetings.

8In the WSIB return to work process, the respondent offered the applicant a position which it considered to be consistent with the applicant's restrictions. However, the WSIB held on November 18, 2015 that the position was not suitable on the basis that it was not productive work, and that there were reasonable prospects that the position may not be available in the long term. The respondent has filed an objection to this decision.

Decision AND Analysis

9The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative. 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.

Grievance

10The 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 this case, it is acknowledged by all parties that there is substantial overlap between the issues raised and relief sought in the Application and those in the grievance.

11The Tribunal has also held that where the respondent takes the position that there is no jurisdiction in the other proceeding for the applicant to assert her or his rights, it would not be fair, just or expeditious to defer. See Krieger v. Toronto Police Services Board, 2008 HRTO 183 at para 7, and Talos v. Grand Erie District School Board, 2012 HRTO 1426 at para 5.

12Although the respondent takes the position before this Tribunal that the arbitrator theoretically has the jurisdiction to hear the grievance, by opposing the extension of the timelines for filing the grievance, the respondent is in fact taking the position that an arbitrator has no jurisdiction to hear the matter. In these circumstances, it is not fair, just or expeditious to defer the Application on the basis of the grievance.

13If the union should decide to refer the grievance to arbitration, and the respondent either withdraws its objections to the timeliness of the grievance or the arbitrator exercises discretion to extend the timelines under the collective agreement, the respondent would be entitled to file a further request to have the Application deferred.

WSIB Proceedings

14Though it is true that the facts in the Application overlap with the facts of the WSIB claim, this does not necessarily mean there is a significant likelihood of inconsistent decisions. See Keith v. GNI Management Group Inc., 2014 HRTO 1824 ("Keith") at para 15. In my view, the specific issues outstanding before the WSIB are quite narrow, and how they are determined are unlikely to have any significant impact on the key allegations raised in the Application.

15There may be some overlap respecting the remedies sought in the Application and what the applicant might receive through the WSIB process. However, as noted in Keith at para 14, this in and of itself may not be a good reason for deferral, given that remedies ordered in one process can be taken into account in the other to ensure there is no duplication.

16I also find that in these circumstances it is not fair, just or expeditious to defer the Application on the basis of the WSIB matter.

ORDER

17The Request to defer is refused. The respondent is directed to file a Response to the Application within 21 days of the date of this Interim Decision.

18I am not seized.