Aitken v. Loblaw Company, 2010 HRTO 1623

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Aitken

Applicant

-and-

Loblaw Company

Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: July 29, 2010

Citation: 2010 HRTO 1623

Indexed as: Aitken v. Loblaw Company

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress. When requested, she provided correspondence relating to the grievance filed on her behalf by her union, UFCW Local 175 (the “union”).

3The applicant did not seek to have the matter deferred and upon receipt of the Tribunal’s Notice of Intent to Defer has indicated that she believes that her grievance will not be processed until she returns to work, something she is not in a position to do at present for reasons relating to disability.

4The union has confirmed that it believes deferral is appropriate under the circumstances in order to avoid a duplication of processes given that the substance of the Application is also the subject matter of the grievance. The union has also confirmed in writing that the grievance is not being held in abeyance pending the applicant’s return to work.

5The respondent employer has not filed any submissions on the issues raised in the Notice of Intent to Defer and its time to do so has now passed.

6The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

7The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. 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).

8The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

9In this case, there is no argument that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The matter is still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant’s grievance will be referred to arbitration. But if the applicant believes, on conclusion of the process, that her human rights issues have not been adequately addressed, she may ask to have his Application brought back on before the Tribunal.

10The Application will therefore be deferred pending the completion of the grievance process.

11The 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.