Amir Attaran v. The University of Ottawa, 2016 HRTO 690

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amir Attaran

Applicant

-and-

The University of Ottawa

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: May 19, 2016

Citation: 2016 HRTO 690

Indexed as: Attaran v. University of Otttawa

WRITTEN SUBMISSIONS

Amir Attaran, Applicant

Self-represented

University of Ottawa, Respondent

David Bolger, Counsel

Association of Professors of the University of Ottawa, affected party

Natasha Udell, Counsel

1This Interim Decision addresses whether this Application should be deferred pending the outcome of a related grievance arbitration proceeding.

2In his Application, the applicant alleged discrimination because of race, colour, ancestry, place of origin and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleges that the respondent has failed to nominate him for a Tier 1 Canada Research Chair (“CRC”) at the expiration of his Tier 2 CRC on February 28, 2015.

3Prior to filing his Application, the applicant filed a consolidated grievance with the Association of Professors of the University of Ottawa (the “Association”) on May 6, 2015. This consolidated grievance addresses the same allegations subsequently raised in his Application. It also addresses an alleged breach of a Memorandum of Settlement arising from an earlier grievance. This latter issue appears to be unrelated to the Application.

4The Tribunal sent a Notice of Intent to Defer on March 24, 2016 asking the parties to provide submissions on deferral. The respondent sent in written submissions supporting deferral, while the applicant only consented to a provisional deferral of four months. The Association supports the applicant’s position on deferral.

decision and analysis

5The Tribunal may defer consideration of an Application on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1 of the Tribunal’s Rules of Procedure). Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

6The 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 a part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. Thus, the Tribunal will generally defer an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

7The applicant points to the fact that the Association and the respondent reached an agreement on July 3, 3015 to bifurcate the issues raised in the May 5, 2015 grievance. The issues relating to the alleged breach were to be expeditiously referred to arbitration.

8With respect to the issues arising from the related CRC grievance, the parties agreed to meet on July 3, 2015 (i.e., on the day of the agreement). The applicant states that there has been little progress on this grievance. The respondent/employer has not retained counsel on it and the issue has not been referred to arbitration. The applicant requests deferral for a period of four months to give the respondent the opportunity to retain counsel and set dates for arbitration. He would like to add the condition that if this is not done within four months that the Tribunal will set hearing dates “forthwith” on this Application.

9However, the applicant has not stated what steps he took to request that the CRC grievance be referred to arbitration or otherwise addressed in a more expeditious fashion. I would note that the applicant waited from May 2015 (when he filed to the grievance) to February 2016 before filing this Application. It would appear that the Application was only filed at this time because the one-year time limit from the last alleged incident of discrimination was approaching.

10To avoid the difficulties caused by overlap between the two proceedings, I find it appropriate to defer consideration of the Application pending the conclusion of the grievance arbitration proceeding. If, at some point in the future, the applicant can point to a failure on the part of the respondent and/or Association to cooperate in the process of referring the CRC grievance to arbitration, it is open to him to seek early reactivation by filing a Request for an Order During Proceedings (Form 10).

11Otherwise, the parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal following conclusion of the grievance proceedings. It should be noted that, a party wishing to proceed with an Application must file a request to proceed no later than 60 days after the conclusion of the grievance arbitration proceeding.

order

12The Tribunal will defer consideration of the Application pending the conclusion of the grievance process of the May 6, 2015 grievance filed on behalf of the applicant by the Association.