HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Derrick Rhule
Applicant
-and-
Iroquois Enterprises, United Steelworkers Local 343-13, and John Volston
Respondents
INTERIM DECISION
Adjudicator: Laurie Letheren
Indexed as: Rhule v. Iroquois Enterprises
WRITTEN SUBMISSIONS
Derrick Rhule, Applicant
Peter Anderson, Counsel
Iroquois Enterprises, Respondent
Vince Panetta, Counsel
United Steelworkers Local 343-13 and John Volston, Respondents
Katrina Peddle, Counsel
1This Interim Decision addresses whether the Tribunal should defer consideration of this Application pending the conclusion of the Application Regarding Union’s Duty of Fair Representation (“DFR Application”).
2The applicant filed an Application alleging discrimination because of race, colour, and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleged that he experienced a breach of his Code rights during his employment and when his employment was terminated.
3In addition to filing this Application, a DFR Application was filed on July 28, 2017 which appears to contain similar allegations.
4By Notice of Intent to Defer dated October 4, 2017, the Tribunal proposed to defer consideration of the Application pending the conclusion of the DFR proceeding.
5The respondents all support the deferral of this Application pending the completion of the DFR Application. The respondents submit that the allegations made in both the DFR and the Tribunal Applications are the same. They submit that there is a risk that if both Applications were to proceed there will be inconsistent findings on the facts.
6The applicant opposes the deferral on the basis that the DFR Application is labour-based and the Tribunal Application is based on human rights.
findings
7The 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 proceeding under a collective agreement based on the same facts and human rights issues. The reason for this is that grievance arbitrators have, not only the power, but also the responsibility to enforce human rights and other employment-related statutes as if they were part of a collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.
8In this case, I find it appropriate for the Tribunal to defer consideration of this Application pending the conclusion of the DFR Application. There is overlap between the facts and human rights issues covered by the two Applications. The outcome of the DFR Application could be determinative of the issues that the applicant seeks to have the Tribunal address and could provide the remedies he seeks.
9If the applicant believes that the DFR Application did not appropriately deal with the substance of his Application, he may seek to re-activate his deferred Application. However, the applicant should take note that, 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.
10Rules 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
11For the above reasons, the Tribunal defers consideration of this Application pending the conclusion of the DFR Application in this case.
Dated at Toronto, this 15th day of December, 2017.
“Signed by”
Laurie Letheren
Vice-chair