Caldeira v. Sysco Food Services of Toronto, 2009 HRTO 1042

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Llewellyn Caldeira

Applicant

-and-

Sysco Food Services of Toronto

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: July 15, 2009

Citation: 2009 HRTO 1042

Indexed as: Caldeira v. Sysco Food Services of Toronto

Written Submissions By:

Llewellyn Caldeira, Applicant ) On her own behalf

Sysco Food Services of Toronto, ) John J. Bruce, Representative Respondents )

Teamsters Local Union 419 ) Marisa Pollock, Representative

1The applicant filed an Application with the Tribunal pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on February 23, 2009. The applicant alleges discrimination in the context of employment on the basis of disability. More specifically, he alleges that the respondent failed to appropriately accommodate his disability.

THE ISSUES

2The respondent has asked the Tribunal to dismiss the Application. It argues that the Application is frivolous and vexatious, offensive to the purposes of the Code and an abuse of process. In the alternative, the respondent asks that the Application be deferred pending the conclusion of a grievance proceeding.

3The applicant’s union, the Teamsters Local Union No 419 (“Union”), has been identified as an affected person and has requested leave to intervene.

4In an Interim Decision, 2009 HRTO 823, I requested submissions from the parties and from the Union regarding the issue of deferral. All three have filed submissions with the Tribunal. In the Interim Decision, I also indicated that the Union’s request to intervene was best dealt with once the deferral issue has been determined.

BACKGROUND

5On September 11, 2007, the Union submitted a policy grievance to the respondent, claiming:

The Company has failed to recognise persons transferred to labour market re-entry for severance payments contrary to the Employment Standards Act and the Collective Agreement and any other legislation. In particular the Company has failed to pay severance pay to Caldeira.

7The remedy sought in the grievance was “full redress including the payment of severance pay”.

8The grievance was scheduled to be heard by an arbitrator on January 28, 2009. Before the hearing took place, the parties appeared to reach an agreement that would have resolved the grievance. This resolution was to include an acknowledgement by the parties that the applicant’s employment agreement with the respondent was frustrated. In addition, in exchange for a release, the respondent would have paid a sum of money to the applicant.

9In light of this apparent agreement, the parties adjourned the arbitration sine die. In the end, however, the terms were not acceptable to the applicant and no settlement agreement was ever signed by the parties.

10The parties have not sought to reschedule the arbitration hearing date. In its submissions to the Tribunal, the respondent has indicated that it would take steps to reschedule the arbitration if the Tribunal declines to dismiss the Application on a preliminary basis.

11The respondent further states that it will advance an abuse of process argument before the arbitrator based on:

a. the applicant’s refusal to sign the settlement agreement; and

b. the contention that the two legal proceedings the applicant is concurrently advancing against the respondent (the grievance and the Application) make diametrically opposing claims.

REQUEST TO DISMISS

12Prior to amendments which came into effect on June 30, 2009 the Code permitted the Ontario Human Rights Commission to dismiss complaints on the basis that they were frivolous, vexatious or made in bad faith. These provisions of the Code no longer apply.

13Rather, section 43(2)1 of the Code now states that where an application is within the Tribunal’s jurisdiction, the Tribunal must provide parties with an opportunity to make oral submissions before making a determination that disposes of an Application.

14I have considered whether the Application is within the Tribunal’s jurisdiction and I find that, on the face of the documents filed with the Tribunal, the Application contains allegations which fall within the Tribunal’s jurisdiction to decide.

15As I indicate below, I appreciate the respondent’s argument that the grievance and the Application make opposing claims. However, in my view, at this preliminary stage, the respondent has not advanced a sufficient basis for me to conclude that the Application is an abuse of process. Nor do I feel it is necessary or expeditious, in the circumstances, to conduct a preliminary oral hearing to determine whether there are other bases for dismissing the Application. My conclusion is without prejudice to the respondent’s ability to advance these arguments at the hearing of this matter.

REQUEST TO DEFER

16Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure (“Rules”).

17Rule 14.1 of the Rules states:

The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

18The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

19Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer the Application, having regard to the status of each proceeding and the steps that have been taken to pursue them.

20I agree with the respondent’s submission that the remedies sought in the Application are in opposition to those requested in the grievance proceeding. In the Application, the applicant seeks, among other things, a financial remedy equivalent to his salary had he remained an employee of the respondent. In the grievance, the remedy sought is severance pay. As the respondent put it, in the grievance, the applicant is arguing that the employment relationship with the respondent was frustrated by his disability and that he could not return to work, whether or not he was offered accommodation. In the Application, the applicant argues that the employment relationship was not frustrated by the disability and that he could return to work with appropriate accommodation.

21In my view, while the remedies sought may be different, there may be an overlap in the subject matter of the two proceedings. In each case, the adjudicator may be called upon to determine whether the applicant was able to return to work with reasonable accommodation and to consider what, if any, reasonable accommodation should have been made available. In each case, the decision-maker would be in a position to consider the respondent’s obligations under the Code.

22While their subject matter may overlap, the evidence before me suggests that it is unlikely that the grievance and the Application will be heard concurrently. The status of the grievance is such that no hearing dates have been set nor will they be set unless the respondent or the Union asks to reschedule the arbitration. In my view, in these circumstances, it would be fair, just and expeditious to proceed with the Application.

DECISION

23The respondent’s request for early dismissal of the Application is dismissed without prejudice to the respondent’s ability to advance these arguments at the hearing of this matter.

24The respondent’s request to defer the Application pending the determination of the grievance is also dismissed.

25As both parties have agreed to participate in a mediation, the Registrar will schedule a mediation date. The Union, as an affected party, shall be given notice of the mediation and is entitled to participate. If the Application is not resolved at the mediation, the Union may ask the Tribunal to rule on its request to intervene.

26I am not seized of this matter.