Monck v. Ford Motor Company of Canada, 2009 HRTO 861

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gregory Monck

Applicant

-and-

Ford Motor Company of Canada Limited and Maurice (Bud) Graham

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: June 16, 2009

Citation: 2009 HRTO 861

Indexed as: Monck v. Ford Motor Company of Canada

1This Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), alleges, among other things, that the respondent employer terminated the applicant’s employment because he was absent from work caring for his terminally ill wife and that the respondents’ actions violated his rights under the Code.

2The respondents submit that the facts of the Application are part of a grievance filed on the applicant’s behalf by his trade union and that the Tribunal ought to defer the application pending completion of the grievance procedure. In a previous Interim Decision in this matter, 2009 HRTO 613, the parties were directed to provide their submissions on the deferral issue, which they have done.

3In the circumstances of this case, and for the reasons that follow, it is my decision that the Tribunal will not defer the Application pending conclusion of the grievance and arbitration procedure.

4In this case, the respondents submit that a December 9, 2008 grievance was filed on the applicant’s behalf by his trade union with respect to the termination of his employment by the corporate respondent in August 2008. The respondents submit that the grievance relates to the same facts and issues as the Application. According to the respondents, the grievance was denied by the corporate respondent at the third stage of the grievance procedure on January 9, 2009 and the union referred the grievance to arbitration on January 14, 2009. However, there is no indication that an arbitrator has been agreed upon or otherwise appointed to hear the grievance, or that dates for the arbitration hearing have been either canvassed or set.

5The respondents rely upon the decision of the Supreme Court of Canada in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929 for the proposition that grievance arbitration is the appropriate venue for disputes arising under the collective agreement, including disputes under human rights statutes. They submit that the Tribunal should exercise its discretion to defer dealing with the application pending conclusion of the grievance procedure, which it submits provides a prompt and effective means of resolving disputes.

6For his part, the applicant submits that he and his wife have suffered considerable hardship as the result of the actions of both his trade union and the corporate respondent. The applicant submits that his wife has a terminal illness and that the termination of his employment and consequently his medical benefits means that he cannot access prescribed heart medication for himself or insulin for his wife who is a brittle diabetic and has a number of other serious medical conditions.

7With respect to whether the Tribunal should defer the Application, the applicant submits that the union representative responsible for pursuing his grievance has refused to provide him with a copy of the grievance and that the grievance was filed by the trade union without his input. He submits that there has been complete lack of action on the part of both his trade union and the employer in moving his grievance along. He submits that the union should have been able to make “some progress” with respect to his grievance since December 2008, but has not. He strongly opposes deferring the Application based on the alleged inaction in pursuing his grievance.

DECISION

8The respondents submit that the Tribunal ought to defer the application in light of the Supreme Court of Canada’s decision in Weber, supra. In Weber, the Court held that, under the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, labour arbitrators have exclusive jurisdiction over disputes arising out of collective agreements, and that such disputes may not therefore be made the subject of court actions. However, as the Tribunal pointed out in Snow v Honda, 2007 HRTO 45, cases subsequent to Weber have consistently held that the arbitrator’s apparently exclusive jurisdiction does not oust the jurisdiction of human rights tribunals who may share overlapping or concurrent jurisdiction over a dispute: Ford Motor Co. v. Ontario (Human Rights Commission) (2001), 2001 CanLII 21234 (ON CA), 209 D.L.R (4th) 465 at paras. 58, 59; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General) [2004] S.C J. No. 354; SCC 40 [Morin] at para. 11. In any event, the Court’s decision in Weber goes to jurisdiction and not deferral and is of limited relevance to this issue.

9Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See: Klein v. Toronto Zionist Council, 2008 HRTO 189.

10The 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 particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application. The mere existence of an outstanding grievance will not automatically lead to deferral of an application. See: Krieger v. Toronto Police Services Board, 2008 HRTO 183.

11In this case, the applicant indicates that his wife has a number of very serious illnesses and that her condition is terminal. This is not contradicted by the respondents. In fact, the respondents previously granted the applicant a leave of absence of at least eight weeks’ duration following receipt of a medical certificate, on or about May 27, 2008, that the applicant’s wife was at a significant risk of dying within 26 weeks of that time. The respondents agree that the applicant’s medical benefits were terminated on December 1, 2008 as a consequence of the termination of the applicant’s employment.

12Although many of the factors arguably favour deferral of the Application, I am persuaded that the Tribunal should not defer the Application based on the stage of the other proceeding and the particular circumstances of this case. The applicant’s employment was terminated in late August 2008. His benefit coverage was terminated on December 1, 2008. A grievance against the termination was not filed until December 9, 2008. Although the respondents submit that the union gave notice of its intention to refer the grievance to arbitration in January 2009, it appears that no arbitrator has been appointed to hear the applicant’s grievance(s), notwithstanding that five months have passed since the grievance was referred to arbitration. Although the respondents submit that the grievance procedure provides for the prompt resolution of disputes under the collective agreement, it does not seem that this particular grievance is being moved forward in a timely way, at least on the basis of the information before the Tribunal.

13In the circumstances, I find that it would not be fair overall to the applicant to defer to the grievance and arbitration procedure, given the status of the other proceeding and the applicant’s inability to access necessary medications for his terminally ill wife because of the alleged contravention of his rights under the Code. I am satisfied that the most fair, just and expeditious outcome is to proceed with this Application. The Request to defer the Application is therefore denied.

14I am not seized of this matter.