Surila Bennett v. Cargill Foods, a Division of Cargill Limited, Chris Riecker and Hoan Do, 2009 HRTO 276

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Surila Bennett Applicant

-and-

Cargill Foods, a Division of Cargill Limited, Chris Riecker and Hoan Do Respondents

-and-

United Food & Commercial Workers Union Canada, Locals 175 and 633 Intervenor

INTERIM DECISION

Adjudicator: Faisal Bhabha Date: March 10, 2009 Citation: 2009 HRTO 276 Indexed as: Bennett v. Cargill Foods

1This is an Application filed November 12, 2008 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 and colour. In the applicant's narrative, she also appears to be alleging family status discrimination by her employer.

2The respondents filed a full Response on January 22, 2009, in which they make a request to defer the Application pursuant to s. 45 of the Code. Also on January 22, 2009, the applicant's union, United Food & Commercial Workers Canada, Locals 175 and 633 (the "union"), filed a Request for Order During Proceedings seeking to be added as an intervenor in these proceedings.

3The purpose of this Interim Decision is to consider the union's Request to Intervene, to decide an issue of timeliness raised by the respondents, and to deal with the issue of whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of another related proceeding.

REQUEST TO INTERVENE

4In this Application, the applicant alleges discrimination in employment, on the ground of colour and, apparently, family status. She also alleges a failure to accommodate her disability. The applicant claims that her requests for accommodation have been repeatedly denied by the employer in favour of another, less senior, employee as a result of favouritism and discrimination. The union is the bargaining agent for employees in the applicant's workplace. The Tribunal, therefore, gave notice of the Application to the union.

5The union seeks to intervene in accordance with Rules 11.2 and 11.3 of the Tribunal's Rules of Procedure. Neither the applicant nor the respondents made submissions in respect of the union's Request to Intervene.

6The union represents the applicant in various grievances arising out of the facts that gave rise to this Application. It has a significant interest in the outcome of the Application, including the remedial orders requested by the applicant. The union's request to intervene is granted.

LATE FILING

7By way of a letter from counsel dated February 25, 2009, the respondents request that the Tribunal refuse to receive or consider the Reply because it was filed in an untimely fashion. The applicant filed a Reply dated February 6, 2009. It appears that the applicant failed to deliver a copy of the Reply to respondents' counsel and instead delivered it to the respondents directly on February 10, 2009. The Tribunal copy was also filed on February 10, 2009. The deadline the Tribunal had set for filing the Reply was February 9, 2009.

8A Tribunal application is a legal proceeding. It is each party's duty to accord the Tribunal process the necessary attention to comply with its procedural directives. At the same time, the Tribunal operates in accordance with its mandate to exercise its discretionary powers in a manner that is fair, just and expeditious.

9In the present case, it appears the applicant's late filing was caused by an oversight. Upon learning that concern had been raised about her timeliness, she immediately contacted the Tribunal to attend to her file. It is worthy of note that the applicant is self-represented and, by her own account, does not speak English as a first language or with a great deal of proficiency.

10In the circumstances, there is no reason to refuse to accept the applicant's Reply. It was delivered and filed one day late. The respondents do not indicate that they have endured any prejudice as a result of the applicant's late or misplaced filing. The Tribunal will therefore accept and process the Reply.

DEFERRAL REQUEST

11The union has filed three grievances on behalf of the applicant arising out of issues raised in the Application. The first, filed around September 17, 2007, alleged discrimination and favouritism and sought to exercise the applicant's seniority rights under the collective agreement to secure a position in the laundry room. The employer denied the grievance and the union alleges that the applicant verbally agreed to withdraw it. The applicant alleges that the grievance is still outstanding and that she never agreed to withdraw it.

12Around October 20, 2008, the union filed two grievances on behalf of the applicant. The first alleged discrimination and favouritism, while the second alleged failure to accommodate the applicant's disability-related restrictions. The union alleges that on December 18, 2008 the applicant signed Minutes of Settlement agreeing to withdraw the failure to accommodate grievance, following her return to work pursuant to a WSIB Return to Work Agreement. The applicant maintains that she never agreed to any settlement. The discrimination and favouritism grievance remains outstanding, with the union pursuing compensation from the employer for lost wages between October 14, 2008 and November 5, 2008.

13The 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 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. In this case, although the applicant filed three grievances relating to the same facts and issues in the Application, it appears that the union considers two of them to have been concluded. The remaining grievance, although framed as an issue of "discrimination and favouritism", is narrowly focused on recovering lost wages for a period of time for which WSIB benefits were not available.

14In these particular circumstances, deferral is not appropriate. The Tribunal will schedule the matter for mediation.

15I am not seized of this matter.