Carty v. Senior Operations (Canada), 2009 HRTO 781

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dennis Carty

Applicant

-and-

Senior Operations (Canada) Ltd.- Senior Flexonics Canada and

Sheet Metal Workers International Association, Local 540

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: June 5, 2009

Citation: 2009 HRTO 781

Indexed as: Carty v. Senior Operations (Canada)

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on March 21, 2009. The applicant alleges that he was discriminated against in employment based on his race, colour and ancestry. The Application names both his employer and his union as respondents.

2The Application names Senior Flexonics Ltd. as the corporate respondent. In its Response the corporate respondent indicates that its correct name is Senior Operations (Canada) Ltd.-Senior Flexonics Canada. The Tribunal has amended the style of cause accordingly.

3The Application names the Sheet Metal Workers’ International Association Local Union 540 (the “union”) as a respondent. In his Reply and a subsequent letter to the union dated May 22, 2009, the applicant indicates that he wishes to withdraw his Application against the union.

4This Interim Decision addresses this request to withdraw and the request by the corporate respondent to defer the Application pending the outcome of an arbitration hearing.

5The Tribunal’s Rules of Procedure outlines the process by which an applicant can withdraw an Application, which normally requires an applicant to deliver a Request to Withdraw to the other parties. Since the other parties are aware of the applicant’s intention to withdraw the Application against the union, the Tribunal will not require this additional step. If the corporate respondent opposes the applicant’s request to withdraw the Application against the union, its submissions must be sent to the Tribunal and the other parties by Monday, June 15, 2009. If no submissions are received or the corporate respondent consents, the Request to withdraw will be allowed and the style of cause amended accordingly.

6The corporate respondent’s Response dated May 1, 2009 requested that the Application be deferred until the outcome of an arbitration hearing scheduled for May 26, 2009. The applicant in his Reply dated May 25, 2009 opposed the deferral request, arguing that his grievance deals primarily with an unjust and wrongful termination and not with his human rights complaints which date over three or four years and which form the basis of his Application. The Reply asserts that the grievance process is unlikely to involve a ruling on any issue of discrimination.

7The Tribunal is now in receipt of a letter from the corporate respondent dated June 2, 2009 which describes the arbitration hearing that was held on May 26, 2009 and continues to argue for a deferral. The arbitration hearing is apparently scheduled to continue on July 15, 16 and 21, 2009. A copy of this letter was provided to the applicant.

8The corporate respondent states that a number of the applicant’s statements in his reply regarding the issue of deferral are inconsistent with his grievance at the arbitration hearing. The corporate respondent states that the grievance explicitly claims unjust termination and discrimination based on race, colour and ancestry, and that the applicant advised the corporate respondent in a letter that the applicant was relying on all the particulars and events contained in his Tribunal Application to support the claims of discrimination referenced in his grievance. The corporate respondent states that the applicant re-confirmed this position at the commencement of the arbitration hearing. The applicant’s letter, his Application and Reply, and the Responses were all made exhibits in the arbitration. According to the corporate respondent, the Arbitrator is seized to determine the alleged unjust termination and the complaints of discrimination.

9The 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. 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).

10Deferral 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.

11In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the grievance.

12Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 (Rule 14.3).

13I am not seized of this matter