Carol Capicotto v. Toronto Transit Commission, 2016 HRTO 470

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carol Capicotto Applicant

-and-

Toronto Transit Commission Respondent

-and-

Amalgamated Transit Union, Local 113 Affected Party

INTERIM DECISION

Adjudicator: David Muir Date: April 13, 2016 Citation: 2016 HRTO 470 Indexed as: Capicotto v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Carlo Capicotto, Applicant Self-represented

Toronto Transit Commission, Respondent Steve Lavender, Counsel

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”).

2On March 7, 2016 the Tribunal issued a Notice of Intent to Defer (NOID) for this Application pending the conclusion of a grievance arbitration proceedings as well as a dispute before the Workplace Safety and Insurance Board (WSIB), both of which are currently underway. The respondent supports deferral. The applicant opposes deferral on the basis that he does not want to wait any longer for a remedy.

3The affected party took no position on the NOID.

4The 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.

5However, the Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on some or all of the same facts and 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).

6In any case where the parties are already engaged in a concurrent legal proceeding in which they are raising all or some of the same 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.

7In this case there appears to be significant overlap in the issues raised in the various proceedings. The applicant does not claim that the issues raised in the other proceedings are different but is concerned with delay. In my view it is appropriate to defer this Application – one of the important reasons to defer being to avoid different conclusions about the facts in two or more concurrent proceedings and the fact is that the potential for differing conclusions on the same issues is present here.

8The Application will therefore be deferred pending the completion of the grievance process. The other issues raised by the parties may be addressed in the event that the Application is reactivated.

9The 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. The other matters raised by the respondent and the affected party will be dealt with by the Tribunal if the Application is brought back on.

10I am not seized of this case.