HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kirk Schuyler
Applicant
-and-
Ford Motor Company of Canada, Limited and Nemak of Canada Corporation
Respondents
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Schuyler v. Ford Motor Company of Canada
1This is an Application filed 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 race and ancestry.
BACKground
2The Application was sent to the respondent employer, Ford Motor Company of Canada Limited (“Ford”), and the applicant’s union, CAW – TCA Local 200 (“union”). In its Response, Ford took the position that the allegations set out in the Application also related to a separate employer, Nemak of Canada Corporation (“Nemak”), and consequently identified Nemak as an additional respondent in this matter.
REQUEST TO INTERVENE
3Upon receipt of the Application, the union filed and served a Request to Intervene indicating that, as the applicant’s bargaining agent, it wished to be present to observe the proceedings and protect its interests. While neither the applicant nor the respondents have responded to the Request to Intervene, their respective documents indicate that the union was a participant in some of the events described in the Application and Responses. The union clearly has an interest in the events as alleged in the Application and Responses, and the Request to Intervene is not opposed. The union’s request to intervene is granted. The scope of the union’s involvement in the hearing will be determined by the Tribunal Vice-chair who hears the matter.
REQUEST TO DISMISS
4In its Response, Ford requests early dismissal of the Application on the basis that another proceeding has, in whole or part, appropriately dealt with the substance of the Application. Ford indicates that the other proceeding was an internal complaint brought by the applicant that was investigated by Ford and the union pursuant to a collective agreement. Ford alleges the investigation findings were reviewed by a Decision Review Committee and the Committee’s determination was neither appealed by the applicant to the next review level nor grieved as provided by the collective agreement.
5Section 45.1 of the Code provides:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
6The applicant objects to the Request for early dismissal. The applicant argues the internal complaint process was based on an informal method of testing the facts and allegations and not an adjudicative process as contemplated by section 45.1. The applicant further alleges that the internal process did not address all the various incidents set out in the Application. As such, the applicant contends that the internal complaints process is not a proceeding that appropriately dealt with the substance of the Application.
7I am not satisfied that the internal complaint and decision review process constitute a “proceeding” within the meaning of section 45.1 of the Code. As stated by the Tribunal in Maurer v. Metroland Media Group, 2009 HRTO 200 at para. 11,
[a] purely private, internal process established by an employer, without formal guarantees of procedural fairness, impartiality or independence, cannot deprive the applicant of the right to pursue a remedy under the Code.
The Request to dismiss is therefore denied.
REQUEST TO DEFER
8In its Response, Ford also requests that the Application be deferred on the basis that there may be alternate proceedings underway with respect to Nemak and that if so, this Application should be deferred pending conclusion of any such matters.
9Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application either on a party’s request or on the Tribunal’s own initiative. Deferral of an application avoids concurrent proceedings and the possibility of inconsistent findings of facts or law.
10Nemak has not made a request to defer and has not indicated that any other proceedings are, or may be, underway. The applicant states that no other proceedings are pending. As such, the Request to defer is dismissed.
CONCLUSION
11The applicant and Nemak have indicated their willingness to participate in mediation. The Tribunal directs Ford to advise the other parties and the Registrar in writing within seven days of receipt of this Interim Decision as to whether or not it is interested in participating in mediation. Based on Ford’s response, the Registrar will schedule next steps accordingly.
12I am not seized of this matter.
Dated at Toronto, this 15th day of June, 2009.
“Signed By”
Ena Chadha
Vice-chair```