Gurofsky v. Ontario Human Rights Commission et al.

[Indexed as: Gurofsky v. Ontario Human Rights Commission]

70 O.R. (3d) 25

[2004] O.J. No. 840

Court File No. 747/02

Ontario Superior Court of Justice

Divisional Court

Then, Caputo and Swinton JJ.

March 5, 2004

Human rights -- Judicial review -- Human Rights Commission exercising its discretion not to proceed with applicant's complaint on basis that complaint fell within s. 34(1)(a) of Human Rights Code and could be more appropriately dealt with through grievance and arbitration procedure -- Applicant having filed 14 grievances which covered same allegations as human rights complaint and which were proceeding to arbitration -- Commission's decision not patently unreasonable -- Commission having obligation to consider whether procedure under another Act is more appropriate but not required to conduct full scale investigation into efficacy of grievance procedure -- Human Rights Code, R.S.O. 1990, c. H.19, s. 34(1)(a).

The applicant was a full-time faculty member of an Ontario college and a member of a bargaining unit represented by the Ontario Public Service Employees Union. He was covered by a collective agreement which contained a grievance procedure that provided for final and binding settlement of disputes through arbitration. Labour relations in the college system are governed by the Colleges Collective Bargaining Act, R.S.O. 1990, c. C.15. The applicant filed a complaint with the Ontario Human Rights Commission alleging that the College and managerial employees of the College had discriminated against him on the basis of handicap. The College asked the Ontario Human Rights Commission to exercise its discretion under s. 34 of the Human Rights Code (the "Code") not to deal with the complaint. The evidence before the Commission was that the applicant had filed 14 grievances which were directly related to and covered the same allegations found in the human rights complaint, and that those grievances were proceeding to arbitration. The applicant submitted that there were inordinate delays in the grievance process, that the College was taking the position that an arbitration board was without jurisdiction to hear his grievances, and that he was in a position of conflict with union officials. The Commission determined that the complaint fell within s. 34(1)(a) of the Code and that the complaint could be more appropriately dealt with under the Colleges Collective Bargaining Act. The applicant sought reconsideration of that decision. The Commission again decided that the complaint fell within s. 34(1)(a) as it could more appropriately be dealt with under the Colleges Collective Bargaining Act. The applicant brought an application for judicial review of the Commission's two decisions, arguing that the Commission made a patently unreasonable decision by failing to inquire into the appropriateness of the grievance and arbitration procedure.

Held, the application should be dismissed.

The Commission must give consideration to whether the procedure under another Act is more appropriate. However, in doing so, there is no obligation to conduct a full-scale investigation into the efficacy of the grievance procedure. In this case, the Commission gave consideration to the relative merits of the grievance and arbitration procedure and a human rights complaint, and determined that given the