HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christopher Reid
Applicant
-and-
The Regional Municipality of York Police Services Board
Respondent
INTERIM DECISION
Adjudicator: Maureen Doyle
Indexed as: Reid v. Regional Municipality of York Police Services Board
WRITTEN SUBMISSIONS
Christoper Reid, Applicant
Self-represented
The Regional Municipality of York Police Services Board, Respondent
Wesley Booker, Counsel
York Regional Police Association, Intervenor
Bruce Price, Counsel
1This Interim Decision addresses whether the Tribunal should defer consideration of the Application pending the conclusion of the grievance proceeding in this case.
2The applicant filed an Application alleging discrimination because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In a lengthy narrative in his Application, the applicant described events from July 2013 to February/March 2017. He indicates that his disability was diagnosed in 2011 and that between July 2013 and September 2014, he experienced ongoing harassment by his immediate supervisor. He alleges that his approach to an investigation was not supported and that his supervisor ignored his input, was demeaning toward him and blamed him more than once for her own errors. He states that he was accused of insubordination toward his supervisor and when he tried to explain his side of events to management, he was asked if this stemmed from stress. He believes this was all an attempt to have him disclose his disability.
3He states that he was called into a meeting with Human Resources, Health and Wellness unit on September 23, 2014, and alleges that management was “trying to force an accommodation on me”. He alleges that the Health and Wellness unit personnel advised him that the employer was trying to ascertain whether his behaviour was something which should be met with discipline, or whether it was related to his disability. He alleges that she then asked for permission to speak to his counsellor to find out whether it was safe for him to continue at work. He alleges that he was subsequently given a Performance Improvement Plan and was threatened with removal from his position in the Homicide unit. He alleges that he made an official complaint of harassment against his supervisor.
4He then asserts that the first incident of discrimination occurred on January 5, 2015, when he was called into a meeting with supervisory personnel and was advised that his firearm and use of force equipment were being taken away due to mental health concerns. He was directed to undergo a psychological assessment and was also removed from the Homicide Unit and ordered to work in another area. He alleges that this was by way of reprisal for having filed a harassment complaint against his supervisor and calls this a punishment meted out to him “under the pretence of the grounds of mental illness”.
5In what he terms the second incident, he alleges that the respondent sent misleading information to the psychologist chosen to assess him. He states that he was “cleared” to return to the Homicide unit and that the third incident was in March 2015 when he was not permitted to return to that unit. He was subsequently advised that his complaint of harassment had been investigated and no harassment was found. He was also told that his gun and use of force equipment were not being returned to him and that he was not being returned to the Homicide unit yet.
6He describes the fourth incident as communication from the Chief of police which spoke of “concerning behaviour” and “emotional instability” without any particulars.
7He states that the fifth incident was being contacted to collect the contents of his desk from the Homicide unit, which he alleges was an indication that the respondent had decided not to permit him to return to that unit. He alleges that it was as a result of that that he applied for a transfer to a uniform patrol.
8He indicates that the sixth incident was in the autumn of 2015 when he was denied a promotion.
9The seventh incident, the applicant states, was the fact that employees of the respondent refused to participate in an independent investigation of the way management at the respondent had dealt with mental health issues.
10It is not entirely clear what he is describing as the eighth incident but it appears to relate to his allegation that his complaints have remained unresolved, and a letter of complaint he wrote to the Chief of police in August 2016 was characterized by the respondent as “bordering on insubordination”.
11He alleges that a ninth incident relates to the respondent’s reaction to his desire in February 2017 to remain involved in a case he had worked on when he was in the Homicide unit, when it came to court. He alleges that the respondent’s reaction was not the norm, nor was it logical, and was “a continuation of the harassment” from January 2015 and was based on his disability.
12Elsewhere in his Application, the applicant indicates that he believes he was discriminated against on the basis of his disability because he was “denied a promotion”’; he was disciplined; there was a poisoned work environment; he was removed from the Homicide unit and an ongoing investigation; his use of force equipment as taken away and he was “accommodated” in a different position, citing his diagnosis; and he was never allowed to return to the Homicide unit despite having medical clearance to do so.
13In addition to filing this Application, the applicant filed a grievance with his union. The grievance has been scheduled for a conciliation meeting. The grievance relates to “a continuing pattern of workplace harassment” and states that the respondent employer has failed to investigate and effectively resolve the matter. It includes a reference to the investigation of past complaints by the individual from outside the force and the respondent’s response to the recommendations made by that individual, and it includes a reference to the respondent’s conduct related to the applicant’s desire in February 2017 to continue to be involved in the case he had worked on. It does not mention the Code, but states that the respondent employer is “in violation of the collective agreement, legislation and internal policy”.
14The respondent has requested that the Tribunal defer consideration of the Application pending the conclusion of the grievance proceeding.
15The respondent submits that the applicant filed two grievances in 2015 and asserts that those matters have been “resolved”. With respect to the 2017 grievance, the respondent submits that it raises “very similar facts and allegations to those raised in the 2015 grievances and the current Application”. The respondent submits that the 2017 grievance is scheduled for a conciliation meeting, and it indicates that if the parties are unsuccessful in reaching a resolution at the conciliation meeting, the matter is then scheduled for arbitration. It submits that in the circumstances, deferral of this Application would be “fair, just and expeditious”.
16The applicant submits that the harassment has never been addressed in any grievance process and disagrees with the respondent’s assertion that the 2015 grievances have been “resolved”. In his Response to the respondent’s request, he provides further details regarding his allegation that the respondent’s actions in February 2017, blocking his participation at the hearing stage of a case which he had worked on as a Homicide detective, were further harassment. He states that his immediate supervisor did not know of his diagnosis but he believes that other members of management at the respondent did and he appears to take the position that his grievance should have named his former immediate supervisor as the “root of the problem”. He repeats his allegation that “having the audacity to make a complaint against my new supervisor resulted in management making the hasty and wrongful decision to breach my human rights and remove me from Homicide”. He asserts that the “harassment grievances” and the “HRTO Application” must be kept separate. He requests that the Application not be deferred.
17The applicant’s union (“YRPA”) agrees with the applicant’s request to proceed with the Application, and not to defer it pending the outcome of the grievance process. It states that the question of discrimination is not addressed by the grievance and asserts that deferral would deny the applicant the right to pursue the matter in the forum of his choice. It also notes that the grievance has been filed on behalf of two grievors and states that “If the application were to be deferred, it would effectively foreclose the YRPA’s ability to address allegations of workplace harassment that have affected [other grievor]”.
findings
18The 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 generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues.
19The Tribunal has stated that holding a matter in abeyance while another overlapping one takes place is a procedural step which is consistent with the Tribunal’s mandate. At paragraph 8 of Melville v. Toronto (City), 2010 HRTO 22 (“Melville”), the Tribunal stated:
Deferral avoids two simultaneous proceedings that may result in conflicting determinations, ensures that the respondent need not be actively defending the same matter in two legal proceedings at the same time, and focuses the Tribunal’s limited resources on cases where it is the only process being pursued. In my view, it is consistent with the Tribunal’s mandate to interpret its rules in a fair, just and expeditious manner to defer a case when a grievance is ongoing, whether or not that grievance has yet been referred to arbitration.
20In this case, I find it appropriate for the Tribunal to defer consideration of the Application pending the conclusion of the grievance proceeding. The grievance at issue has been scheduled for a conciliation meeting. It is already fairly well advanced in the procedure, with arbitration being the next step if the conciliation meeting is unsuccessful in resolving the dispute. Further, though the grievance has not alleged a violation of the Code, it is apparent that there is significant factual overlap between the grievance and the Application and it is to be expected that at a hearing of the grievance, the parties would be giving evidence with respect to many, if not most, of the same events. Considering all of the above and the factors described in Melville, I find that it is appropriate to defer this Application to the completion of the grievance process.
21Though the applicant’s union states that deferral would deny the applicant the opportunity to have his matter dealt with by the Tribunal, this is not necessarily the case. While under s. 45.1 of the Code, the Tribunal has the power to dismiss Applications if the substance of an Application has been appropriately dealt with in another proceeding, it does not automatically follow that the applicant will not have the opportunity to have the Tribunal address the allegations in his Application.
22If the applicant believes that the grievance proceeding did not appropriately deal with the substance of his Application, he may seek to re-activate his deferred Application and a determination regarding the applicability of s. 45.1 may have to be made at that time.
23Further, though the applicant’s union takes the position that the other grievor who is included in the April 2017 grievance will be denied the opportunity to have her allegations considered if this Application is deferred, with respect, it is entirely unclear how deferral of this Application would have any impact on the other grievor’s ability to present her allegations in the grievance process.
24Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure address how an application may be brought back before the Tribunal following conclusion of another proceeding. It should be noted that, a party wishing to proceed with an application must file a Request for Order During Proceedings (Form 10) no later than 60 days after the conclusion of the other proceeding. The Tribunal’s Rules of Procedure and Forms can be found on its website at www.sjto.gov.on.ca/hrto/.
order
25For the above reasons, the Tribunal defers consideration of this Application pending the conclusion of the grievance proceeding in this case.
26I am not seized.
Dated at Toronto, this 15th day of November, 2017.
“Signed by”
Maureen Doyle
Vice-chair