Wallace v. Metroland Media Group, 2010 HRTO 14

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joshua Wallace

Applicant

-and-

Metroland Media Group Ltd., Tom Russell and Brenda Parsons

Respondents

-and-

Communications, Energy and Paperworkers Union of Canada

Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend

Date: January 5, 2010

Citation: 2010 HRTO 14

Indexed as: Wallace v. Metroland Media Group

1The applicant filed this Application on February 10, 2009, under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination in employment on the basis of disability, sex, record of offences and reprisal. In the Application, the applicant notes that he was a member of the Communications, Energy and Paperworkers Union (“CEP”), but that he had not filed a grievance with respect to the subject matter of his Application. Subsequently, a grievance was filed.

2This Interim Decision addresses the following issues: (1) the Request to Intervene made by the CEP; (2) the request to defer the Application made by the respondents and the CEP; and (3) the Requests for Order During Proceedings to remove the individual respondents as parties to this proceeding.

INTERVENTION

3The CEP filed a Request to Intervene (Form 5) on the basis that it is an interested party. It has filed a grievance on behalf of the applicant, over which it has carriage. Moreover, it is the exclusive bargaining agent for the applicant. It indicates that it “also has facts and knowledge that will be of assistance to the Tribunal in adjudicating the complaint.”

4The applicant and the respondent did not take advantage of their opportunity under Rule 11.4 to file a response to the Request to Intervene, and have therefore neither agreed nor objected to the proposed intervention.

5A union almost always has an interest in a human rights application involving a member, and unless there are exceptional circumstances, the Tribunal will grant the bargaining agent intervenor status when requested. In this case, I can see no reason, to deny the union’s request to intervene. The Request to Intervene is granted. The extent of the intervenor’s participation in the Tribunal’s proceedings will be determined by the Tribunal at the appropriate time.

DEFERRAL

6The CEP indicates that the applicant did not initially want to file a grievance, but wished instead to pursue his Application before this Tribunal. The CEP indicates further that upon receiving the Application in May 2009, it engaged in an investigation and filed a grievance, dated May 29, 2009, on the applicant’s behalf. The grievance covers most aspects of the Application save for the allegations made against two individually named co-workers. Both the Application and the grievance address the termination of the applicant’s employment and the company’s alleged failure to accommodate the applicant/grievor to the point of undue hardship. The grievance claims compensation for the “mental suffering and damage to [the grievor’s] human rights.”

7The CEP filed a Request for Order During Proceedings on June 18, 2009 on behalf of itself and two of the individually named respondents (see below) asking the Tribunal to defer consideration of the Application pending the outcome of the grievance. In its Response filed on June 4, 2009, the corporate respondent and the remaining two individually named respondents request that the Tribunal defer the Application.

8The applicant did not respond to the Request for Order, nor did he file a Reply to the Response. The Request for Order specifically states that the applicant has 14 days in which to respond. The applicant was advised of his right to file a Reply to the Response in the cover letter providing him with the Response. This letter did not make specific reference to the request for deferral, but on August 25, 2009, the Tribunal wrote a further letter advising the applicant of the respondent’s request for deferral and providing him with the opportunity to provide written submissions within 14 days. The applicant did not avail himself of the opportunity to provide written submissions.

9The 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 the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

10In light of substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance, as well the applicant’s failure to object to the proposed deferral, I am satisfied that deferral is appropriate. If the applicant believes, on conclusion of the grievance/arbitration process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

11The Application will therefore be deferred pending the conclusion of the grievance process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.

REMOVAL OF RESPONDENTS

12Counsel for the CEP submitted a letter signed by the applicant in which he asks that the Tribunal remove Michael Murphy and Roger Sarrouh as individually named respondents to his Application. Previously, these individuals had brought a Request for Order asking that they be removed. The Tribunal agrees that this removal is appropriate and orders that the style of cause be amended to reflect their removal.

13In addition, Counsel for the remaining two individually named respondents, Tom Russell and Brenda Parsons, has brought a Request for Order During Proceedings asking for their removal from the Application. There was also a request to remove Paul Stewart from the Application, but as Mr. Stewart was not named individually in the Application, but listed as the contact person for Metroland Media Group Ltd., this request is not relevant.

14In light of my decision to defer the Application, it is unnecessary to deal with this request at this juncture. The Tribunal can address this issue, if appropriate, should the Application be re-activated following the conclusion of the grievance process.

15I am not seized of this matter.