Williams v. Benteler Automotive Canada, 2009 HRTO 1608

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ria Williams

Applicant

• and-

Benteler Automotive Canada, Bill Maurais, Carl Fan, Doreen Henschel,

Jeff Qui-Yu, Michelle Coulter and Sean Bates

Respondents

INTERIM decision

Adjudicator: Ena Chadha

Date: October 6, 2009

Citation: 2009 HRTO 1608

Indexed as: Williams v. Benteler Automotive Canada

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on April 27, 2009, alleging discrimination and reprisal in employment on the basis of disability, age and association with a person identified by a Code protected ground.

2On August 20, 2009, the respondents filed a Response, wherein they requested that the Application be deferred because there are ongoing proceedings before other decision-makers and bodies which raise some or all of the same facts presented in the Application. The respondents submit that a number of grievances have been filed by the applicant which remain outstanding and pertain to the same facts underlying the Application. The respondents further submit that the applicant has also filed a complaint against one of the personal respondents with the College of Nurses of Ontario regarding the events described in the Application.

3On September 17, 2009, the Tribunal sent a copy of the Response and a Notice of the respondents’ request to defer to the applicant and the applicant’s union. The Tribunal invited the applicant to file a Reply and address the respondents’ request for deferral in her Reply. The applicant filed a Reply on October 1, 2009; however, the Reply did not include any submissions regarding the request to defer.

DECISION

4The 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). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

5The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues: see Krieger v. Toronto Police Services Board, 2008 HRTO 183, and Loranger v. Customs and Immigration Union, 2008 HRTO 432.

6In 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: see Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970 citing Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

7The applicant indicates in the Application that a number of grievances have been filed alleging violations of the collective agreement between the parties, arising out of the same facts and allegations as set out in this Application. These grievances are at various stages, remain outstanding and continue to be subject to discussions between the applicant, her union and the respondent employer.

8The applicant also acknowledges in her Application that she currently has an existing complaint with the College of Nurses of Ontario and this complaint is under investigation. The applicant provided a copy of a letter from the College of Nurse of Ontario dated March 12, 2009, confirming that the applicant’s complaint is proceeding through the investigation process. While the College of Nurses investigation may be an additional basis to defer this Application, the Tribunal does not have sufficient information regarding this matter.

9Nevertheless, in these circumstances, the Tribunal finds the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievances. The Tribunal orders that this Application be deferred pending the conclusion of the grievance process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

10I am not seized of this matter.