Human Rights Tribunal of Ontario

B E T W E E N:

Charles Smith Applicant

-and-

CAMI Automotive Inc. Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: July 27, 2009 Citation: 2009 HRTO 1149 Indexed as: Smith v. CAMI Automotive

[1] The purpose of this Interim Decision is to deal with the issue of whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of grievance proceedings.

[2] The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on January 19, 2009, which alleges that the respondent discriminated against him with respect to employment because of his disability. The respondent filed a Response on March 12, 2009, which denies the allegation of discrimination.

[3] Both parties acknowledged that the facts of the Application are part of several union grievances that are still in progress, but did not request that the Tribunal defer consideration of the Application until the grievance proceedings are completed.

[4] On June 2, 2009, the Tribunal’s Registrar sent the parties and the applicant’s union, CAW – Canada, a letter, which requested submissions from them on whether it is appropriate to defer consideration of the Application pending the completion of the grievance proceedings.

[5] The applicant submits that the Tribunal should not defer consideration of the Application pending the completion of the grievance proceedings because he has filed four grievances, which have been outstanding between 10 and 46 months, and none of them have reached arbitration. He submits that the only reason that he filed his Application at the Tribunal is because his grievances have not been processed in a timely manner.

[6] The respondent and the union both submit that the Tribunal should defer consideration of the Application pending the completion of the grievance proceedings. The respondent submits that the Application should be deferred pending arbitration of the grievances, but that the union is required to file an Intent to Arbitrate in order for the grievances to proceed to arbitration. The union submits that it is requesting deferral so that the grievances can proceed before an arbitrator, who will have the authority to make a final and binding decision.

[7] Rule 14.1 of the Tribunal’s Rules of Procedure state that it may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will 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. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

[8] In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. Although it appears that the applicant’s grievances have remained outstanding for a lengthy period of time, I am not satisfied that this alone justifies a departure from the Tribunal’s normal approach. The matters are still live and the grievance process has not concluded. If the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back before the Tribunal.

[9] Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance proceedings.

[10] Where a party wishes to proceed with an Application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4). The union’s Request to Intervene will be dealt with by the Tribunal if and when the Application is brought back to the Tribunal.

[11] I am not seized of this matter.

Dated at Toronto, this 27^th^ day of July, 2009.

“Signed by”

Ken Bhattacharjee Vice-chair