King v. Annan & Bird Lithographers, 2010 HRTO 1071

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linus King

Applicant

-and-

Annan & Bird Lithographers Inc. and John Bird

Respondents

-and-

Communications, Energy, and Paperworkers Union of Canada, Local 591G

Intervener

INTERIM DECISION

Adjudicator: Michelle Flaherty Date: May 10, 2010 Citation: 2010 HRTO 1071 Indexed as: King v. Annan & Bird Lithographers

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code") in which he alleges discrimination in the context of employment on the basis of race, disability, family status, and marital status. In essence, he alleges that the respondents made discriminatory remarks to him in front of other employees.

2The respondents filed a Response in which they deny the allegations of discrimination and ask that the Application be deferred pending the outcome of an ongoing grievance proceeding. They state that a grievance with the same subject-matter as the Application was filed on behalf of the applicant. The respondents also raise a number of other preliminary issues, including whether the individual respondents should be removed and whether the applicant has established a prima facie case.

3The applicant filed a Reply. He acknowledges that the grievance addresses a disciplinary suspension but states that the grievance and the Application are "separate issues altogether".

4The applicant's union, the Communications, Energy and Paperworkers Union of Canada, Local 591G ("Union") filed a Request to Intervene. The Union states that a grievance has been filed on behalf of the applicant which addresses a disciplinary suspension and includes allegations that discriminatory comments were made to the applicant in breach of the Code. The Union explains that a mediation was scheduled before the arbitrator on April 8, 2010.

5Neither party has responded to the Union's Request to Intervene and the time for doing so under the Rules has elapsed.

UNION'S REQUEST TO INTERVENE

6The Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 that:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant's bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

7I am satisfied that the Union has the requisite interest in this Application. The Union is granted leave to intervene. Should the Application proceed to a hearing, the scope of the Union's intervention will be determined by the adjudicator at the hearing.

REQUEST TO DEFER

8The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

9Based on the material before me, I am satisfied that the facts and issues raised by this Application are part of the grievance process. While I understand that the applicant feels the grievance and the Application raise separate issues, based on the language of the Application and that of the grievance, there is clearly significant overlap in the two matters. In the circumstances, the arbitration proceeding should proceed to its conclusion before the Tribunal may deal with whatever might remain of the merits of the Application.

10Accordingly, the Application will be deferred pending the completion of the grievance and arbitration process.

11The Tribunal may deal with the other preliminary issues raised by the respondents if the Application proceeds.

12The 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.