David Smith v. Vannatter Group Inc., 2009 HRTO 635

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Smith Applicant

-and-

Vannatter Group Inc., Transcast Precision Inc., Debra Vannatter, William Adams, Harley Vannatter, Dean Topolinski, and Thomas Dell Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: May 13, 2009

Citation: 2009 HRTO 635

Indexed as: Smith v. Vannatter Group

1This is an Application filed on April 16, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). In the Application, the applicant alleges discrimination on the grounds of disability in the termination of his employment. The Application was accompanied by a Request to Expedite Proceedings. The applicant states that the company has ceased operations and issued lay-off notices to all employees. He understands that the company will be going into receivership or bankruptcy.

2On April 21, 2009, the Tribunal issued a Notice of Application to the respondents. The time for filing Responses to the Application has not yet elapsed. The Notice of Application also notified the respondents of the Request to Expedite Proceedings, and directed them to respond to the Request.

3In addition, as the Application stated that the facts were also the subject of a grievance filed by the applicant's union, the United Automobile Workers, Local 251 (the Union), the Tribunal issued a Notice of Intent to Defer the Application, requesting the parties' submissions on whether it is appropriate to defer consideration of the Application pending the resolution of the grievance.

4Some of the respondents have filed Responses to the Request to Expedite, and some have also filed a Response to the Application. The Tribunal has received submissions on the issue of deferral of the Application from the applicant, the Union and some of the respondents.

DELIVERY OF THE NOTICE OF APPLICATION

5The Tribunal's Notice of Application was sent by courier to the applicant's former employer, Vannatter Group Inc. (Vannatter), at the address provided by the applicant. The Notice could not be delivered and has been returned to the Tribunal. From the information provided by the parties, it appears that the address provided by the applicant was the place of operations of this respondent, but that as of the end of March 2009, the company is no longer in operation.

6Two other Notices of Application sent to other respondents at the same address have also been returned; however, those respondents appear to have received notification of these proceedings as they have filed Responses to the Request to Expedite Proceedings.

7Rule 1.7(p) provides the Tribunal with the authority, to provide for the fair, just and expeditious resolution of any matter before it, to require a party to produce information. Based on the material before the Tribunal, it may be that the plant location is the best and last known address for Vannatter. However, the Tribunal finds it appropriate to direct any party that has knowledge of contact information for Vannatter, to provide this information to the Tribunal and to the other parties, by May 27, 2009.

DEFERRAL OF APPLICATION

8The 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.

9Based on the submissions of the parties and the material before it, the Tribunal is not satisfied that deferral of the Application is appropriate. The Union has indicated that arbitration proceedings are in a state of uncertainty as a result of the discontinuance of the company's operations. It is not clear whether the applicant will have the issues in this Application resolved through the grievance process.

REQUEST TO EXPEDITE

10The Tribunal denies the Request to Expedite. Although clearly unfortunate, the circumstances the applicant cites in support of the Request to Expedite do not warrant giving this Application priority for Tribunal resources over other matters.

11The discontinuance of the company's operations may well affect the applicant's ability to achieve a remedy against Vannatter even if liability under the Code is established. But that reality has already occurred and it is not clear that expediting the Tribunal's processes will alter the applicant's position in that regard.

12I am not seized.