Roberts v. Toronto Transit Commission, 2017 HRTO 993

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fitzgerald Roberts

Applicant

-and-

Toronto Transit Commission

Respondent

INTERIM DECISION

Adjudicator: Esi Codjoe

Date: August 3, 2017

Citation: 2017 HRTO 993

Indexed as: Roberts v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Fitzgerald Roberts, Applicant

Self-represented

Toronto Transit Commission, Respondent

Giuseppe Agostino, Counsel

1This Interim Decision addresses whether the Tribunal should defer consideration of the Application pending the conclusion of the grievance and Ministry of Labour (“MOL”), Employment Standards Act, 2000, S.O. c.41 (“ESA”) proceedings in this case.

2The applicant filed an Application alleging discrimination because of race, colour, ancestry, place of origin, 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 was routinely harassed in his workplace, and that the harassment led to the workplace becoming a poisoned environment.

3In addition to filing this Application, the applicant filed a grievance with his union and an ESA claim with the MOL. The grievance is currently at the mediation stage, if unsuccessful it will be referred to arbitration. It is unclear what stage the applicant’s ESA claim has reached in the MOL claims process.

4By Notice of Intent to Defer dated May 15, 2017 the Tribunal proposed to defer consideration of the Application pending the conclusion of the grievance and Ministry of Labour proceedings.

5In his grievance, the applicant alleges that he was subject to workplace harassment and a poisoned work environment. The applicant opposes deferral of his application because he lacks confidence in his union’s ability to represent him at grievance arbitration. The respondent supports the deferral of the Application.

6The ESA claim appears to suggest that the applicant was subject to a reprisal because he exercised or attempted to exercise a right under the ESA. It appears that the complaint may be based on the same facts as outlined in the Application. However, the applicant has not specified which ESA right is the subject matter of the claim, or why that claim should not be deferred. The respondent provided no submission on the issue of the deferral pending conclusion of the ESA claim.

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 grievance 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 the Application pending the conclusion of the grievance and ESA claim.

9The applicant’s grievance appears to identify the Code issues that are outlined in his Application; those issues are the basis of the grievance. The grievance arbitrator will have the ability to consider the issues outlined in the Application. There is insufficient evidence to suggest that the applicant’s union will not adequately represent him in the grievance process. Besides, the fact remains that the applicant has filed a grievance raising essentially the same issues that he has raised in this Application. Given the reasoning in Parry Sound, above, it is reasonable to expect that the Code issues will be fully addressed in the grievance arbitration.

10The information before me suggests that the ESA claim is based on the same facts as this Application. The Tribunal has deferred applications where there is a claim based on the same facts. It has reasoned that the deferral of such an application, speaks to the issue of adjudicative economy, efficiency and the possibility of inconsistent findings of fact in concurrent proceedings. See Hahnfeld v. Nacora Insurance Brokers, 2014 HRTO 1161 and Gaudreault v. S & B Dentistry Corporation, 2012 HRTO 2036.

11Consequently, it is appropriate to defer this Application; an important reason to defer is to avoid different conclusions about the facts in two or more concurrent proceedings. There is the potential for differing conclusions on the same issues in this case.

12If the applicant believes that the grievance and ESA claim 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.

13Rules 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

14For the above reasons, the Tribunal defers consideration of this Application pending the conclusion of the grievance and Ministry of Labour proceedings in this case.