Edward McGimpsey v. Frito Lay Canada, 2010 HRTO 1004

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edward McGimpsey

Applicant

-and-

Frito Lay Canada, Ron Kreutzer and Carlos Lozano

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: May 6, 2010

Citation: 2010 HRTO 1004

Indexed as: McGimpsey v. Frito Lay Canada

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) on August 26, 2009, involves allegations of discrimination on the basis of disability including failure to accommodate in the context of employment. The Application references an arbitration award dated September 19, 2007 dealing with issue of accommodation of the applicant, as well as a subsequent grievance dated November 30, 2009 alleging a failure to accommodate based on medical documentation and failure to reintegrate the applicant as ordered by the arbitrator.

2On March 11, 2010, the Tribunal issued a Notice of Intent to Defer indicating that it may be appropriate to defer the consideration of the Application pending the resolution of another legal proceeding dealing with the subject matter of the Application. The Tribunal offered the parties and the applicant’s union an opportunity to file submissions on the issue of deferral.

3The applicant has filed submissions indicating that he is in agreement with deferral pending the “arbitration hearing” dated May 20, 2010. The union has also filed submissions in support of deferral and has clarified that the aforementioned date is a mediation and that in the event that the mediation does not resolve the matter, the parties may proceed to arbitration. No submissions on deferral have been filed by the respondents although the corporate respondent has acknowledged the applicant’s agreement with deferral and confirmed that it will not be filing a Response to the Application unless the Tribunal requires otherwise.

4Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure (“Rules”).

5Rule 14.1 of the Rules states:

The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

6The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same and or similar facts and issues.

7Based on the material filed and the submissions made, it is apparent that, at a minimum, there is significant overlap between the Application and the outstanding grievance. Accordingly, the Application will be deferred pending the completion of the grievance proceeding.

8The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which a party may request that the Application proceed.

9I am not seized of this matter.