Sabalinggan (Simon) Meyyan v. AeroTek Manufacturing Ltd., 2009 HRTO 2032

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sabalinggan (Simon) Meyyan

Applicant

-and-

AeroTek Manufacturing Ltd.

Respondent

INTERIM DECISION

Adjudicator: Sherry Liang

Date: November 26, 2009

Citation: 2009 HRTO 2032

Indexed as: Meyyan v. AeroTek Manufacturing

1This is an Application filed on June 24, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application alleges discrimination in employment on the grounds of race, colour and age, as well as reprisal.

2The Application centres on the applicant’s discharge in June 2009. The applicant claims that the discharge, which was ostensibly for taking an unapproved leave of absence, was discriminatory. He also alleges that it was a reprisal for attempting to enforce collective agreement rights and for raising a health and safety issue.

3The applicant is represented in the workplace by a union, the International Association of Machinists and Aerospace Workers, Local 905 (the union), and has filed a grievance over his discharge alleging violations of the collective agreement, including the “no discrimination” provision.

4The union has filed a Request to Intervene in the Application, confirming that it has filed a grievance on the applicant’s behalf. The union states that the Application should be suspended pending the outcome of the grievance process, and that the grievance has been referred to arbitration pursuant to the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A. In the Response, the respondent also requests that the Application be deferred until the completion of the grievance proceedings, and encloses correspondence between the parties about the appointment of an arbitrator. The applicant did not respond to the request to defer in his Reply.

5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (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.

6The 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).

7Even where it is not apparent that human rights issues will be pursued in the other forum, the Tribunal may decide to defer to concurrent proceedings where the same or overlapping factual issues are raised. In those cases, in exercising its discretion to defer, the Tribunal will consider factors such as the subject matter of the other proceeding, its nature, the type of remedies available, the status of the other proceeding and steps that have been taken to pursue it.

8In this case, the event at the heart of the Application, the applicant’s discharge from employment, is also the central issue in the concurrent grievance proceeding. Although the union does not say specifically in its Request to Intervene whether it intends to raise human rights issues in the arbitration, the grievance references the “no discrimination” provision of the collective agreement, and the union has also stated that it supports the applicant’s position in this Application. In any event, the grievance proceedings are well underway and I am satisfied that in all the circumstances, deferral of the Application is appropriate.

9The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the arbitration process has been concluded.

10I am not seized of this matter.