Frances Hillier v. Benteler Automotive Canada Corporation, 2009 HRTO 1170

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Frances Hillier

Applicant

-and-

Benteler Automotive Canada Corporation, Doreen Henschel, Michelle Coulter and Bill Maurais

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: July 29, 2009

Citation: 2009 HRTO 1170

Indexed as: Hillier v. Benteler Automotive Canada

1This is an Application filed on April 27, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability, association with a person identified by the ground of disability, and reprisal or threat of reprisal. In the Response to the Application, the respondents request that the Application be deferred pending the completion of a grievance proceeding. The Canadian Auto Workers Union – Local 1285 (the “union”) filed a Request to Intervene. This Interim Decision deals with the issue of whether the Application should be deferred.

2The respondents submit that the substance of the Application appears to concern two issues: comments made by the respondent Henschel to the applicant on November 19, 2008, and the assignment of duties to the applicant on March 4, 2009. They submit that the issues in the Application are the subject matter of a grievance dated November 19, 2008, and two grievances dated March 16, 2009. The respondents included a copy of one grievance dated March 16, 2009, and the complainant included a copy of a second grievance dated March 16, 2009, with her Reply. The grievances allege that the company did not treat her in a fair and reasonable manner by making her hang ABS cables when it was not within her restrictions and by not sending a form in to the Workplace Safety and Insurance Board. It appears that these grievances have proceeded to Step 3. The applicant provided a copy of a document indicating that the earlier grievance was settled at Step 4. The applicant opposes deferral.

3The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

4The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

5The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, Tribunal’s normal approach is to defer to the other proceeding (Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970).

6In the present case, allegations concerning the assignment of duties to the applicant on March 4, 2009 appear to be a significant aspect of the Application and the applicant has a grievance based on substantially the same facts. If the grievance proceeds to arbitration, an arbitrator will have the authority to deal with any human rights issues raised in the grievance. There are no circumstances that would cause the Tribunal to depart from its normal approach.

7The Application will therefore be deferred pending the completion of the grievance process. It is not necessary to deal with the union’s Request to Intervene at this point in time.

8The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.

9I am not seized.