Sheldon Brown v. Loblaw Companies Limited, 2009 HRTO 456

Human Rights Tribunal of Ontario

B E T W E E N:

Sheldon Brown

Applicant

-and-

Loblaw Companies Limited, Ben Mayhew, Tristan Vulencia and Ray Thompson

Respondents

interim decision

Adjudicator: Keith Brennenstuhl

Date: April 17, 2009

Citation: 2009 HRTO 456

Indexed as: Brown v. Loblaw Companies

1This is an Application filed November 3, 2008 under section 53(3) of the Human Rights Code, R.S.O, c. H. 19 as amended (the "Code"). The Application alleges that the applicant was terminated from his employment with the corporate respondent because of his disability.

2The respondents request that this Application be deferred pending the outcome of an arbitration proceeding currently in progress dealing with the applicant's grievance that he was wrongfully terminated.

3The respondents claim that the applicant's grievance was filed in relation to the same events underlying his Application to the Tribunal. The respondents submit that the provisions of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, as amended ("LRA") and the collective agreement provide for a process that has the ability to deal with human rights issues including the presentation of evidence and the examination of witnesses before an independent arbitrator.

4The applicant argues that this Application should not be deferred. The applicant claims the Tribunal is the more appropriate forum to deal with the human right issues and that the applicant's human rights issues would not be addressed in the grievance arbitration proceeding.

DECISION

5The 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. 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 the deferral is the most fair, just and expeditious way of proceeding with the Application.

6In my view, the facts and issues raised by the Application are part of a grievance process that is still in progress. I am not persuaded by the applicant's submission to the effect that a grievance arbitration is not an adequate forum to determine human rights issues raised by the applicant or that those issues will not be dealt with in that forum. 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 Social Services Administration Board v. O.P.S.E.U., Local 342, 2003 SCC 42).

7Deferral of an application ensures that proceedings dealing with the same facts and issues do not run concurrently, thereby raising the possibility of inconsistent decisions. Deferral also avoids the prejudice to the parties, in particular respondents, in having to deal with the same or similar issues in two or more separate proceedings.

8In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the grievance.

9Any party wishing to proceed with the Application should do so within 60 days of the conclusion of the arbitration in writing to the Registrar-Transition.

10I am not seized of this matter.