Mason v. Senior Flexonics Canada, 2010 HRTO 1199

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terrence Mason

Applicant

-and-

Senior Flexonics Canada

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: May 28, 2010

Citation: 2010 HRTO 1199

Indexed as: Mason v. Senior Flexonics Canada

1The applicant filed an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination on the basis of race and colour in the context of employment. He also alleges reprisal or threat of reprisal.

2In essence, the applicant alleges that he has been the victim of ongoing institutional racism, that he was required to work when other employees were sent home, that his work space is unsafe, and that his department is structured differently from other departments because the two employees who work in his group are racialized.

3In the section of the Application dealing with matters which occurred more than one year before the Application was filed (where the applicant is required to explain the delay in filing the Application), he seems to raise further allegations. He alleges that he was offered a promotion at a pay cut, while another employee obtained the promotion at the full rate of pay; he was refused cross-training; documents were falsified; and he was sworn at by management. The applicant suggests that grievances were filed regarding these issues.

4The respondent filed a Response in which it seeks the early dismissal of the Application because another proceeding (a grievance) has in whole or in part appropriately dealt with the substance of the Application.

5The parties provided copies of the following grievances:

a. on July 30, 2007, a grievance alleging that requiring the applicant to work while others were sent home was discriminatory and in breach of the collective agreement. The grievance was denied by the respondent and did not proceed to arbitration;

b. on October 2, 2007, a grievance alleging allocation of overtime in breach of the collective agreement;

c. on March 20, 2008, a grievance alleging institutional racism and that the rate of pay for the promotion, the failure to provide cross-training, the swearing and the falsification of documents are in breach of the collective agreement. This grievance was denied by the respondent and did not proceed to arbitration;

d. on May 27, 2008, a grievance alleging allocation of overtime in breach of the collective agreement; and

e. on August 15, 2008, a grievance alleging discrimination.

6In his Reply, the applicant objects to the dismissal of the Application. He argues that the grievances he filed in 2007 and 2008 did not appropriately deal with the issues of discrimination and that, in any event, they were “ignored” by the Union and therefore did not “appropriately address” the substance of the Application. The applicant also requests leave to withdraw the Application as against his Union, the Sheet Metal Workers’ International Association, Local Union 540 (“Union”).

ANALYSIS

Withdrawal against the Union

7Neither the respondent nor the Union has objected to or made submissions in respect to this Request. Accordingly, the request to withdraw the Application against the Union is granted and the style of cause is amended accordingly.

Request for dismissal

8Section 45.1 of the Code provides as follows:

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.

9The issue for this Tribunal is whether another proceeding has appropriately dealt with the substance of all or part of the Application, such that all or part of the Application should be dismissed. It is helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the Application.

10The applicant filed grievances with respect to incidents in 2007 and 2008. I understand that at least two of these grievances were denied by the respondent and have not proceeded to an arbitration hearing. The parties have not provided information regarding the outcome of the other grievances.

11Based on the information before me, I am not able to determine whether the substance of the Application has, in whole or in part, been appropriately dealt with in another proceeding.

Deferral

12It may be that some of the grievances described above are ongoing. The Tribunal’s general practice is to defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

Request for Submissions

13The Tribunal requires further submissions from the parties in order to determine whether the Application should proceed or be dismissed or deferred. In the circumstances, it is also appropriate that the Union have an opportunity to make submissions on these issues

14Within ten days of the date of this Interim Decision, the applicant is required to provide to the respondent and the Union and file with the Tribunal additional written submissions addressing the following issues:

a. What was the outcome of each of the grievances listed in paragraph 5 of this Interim Decision?

b. If the grievances were withdrawn, were they withdrawn by the applicant or by his Union?

c. If there are ongoing grievances, should the Tribunal defer the Application pending the outcome of any ongoing grievance proceeding?

15Within twenty days of the date of this Interim Decision, the respondent and the Union may provide to the applicant and each other and file with the Tribunal written submissions addressing questions a, b and c, above.

16I am not seized of this matter.