Rita Auluck v. Dover Cup, Division of Dover Industries Limited, 2010 HRTO 1716

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rita Auluck

Applicant

-and-

Dover Cup, Division of Dover Industries Limited

Respondent

interim DECISION

Adjudicator: Judith Keene

Date: August 18, 2010

Citation: 2010 HRTO 1716

Indexed as: Auluck v. Dover Cup

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 and harassment with respect to employment because of disability, on April 23, 2010.

2The Application notes that the applicant has filed grievances, and copies of two grievances were attached. In accordance with its usual practice, the Tribunal sent a copy of the Application and its attachments and a Notice of Intent to Defer to the applicant, the respondent, and to the applicant’s union, asking for submissions “as to why the consideration of this Application should, or should not, be deferred” to the grievance process.

3The applicant did not make submissions in regard to deferral. Responses have been received from the respondent and the applicant’s union. Neither Response addresses why the Application should be deferred, except insofar as the union’s response briefly states that “a grievance (sic) has been filed and is being processed”. The union states that it is considering whether to seek to intervene in this Application, and otherwise states that it “has no objection” to deferral. The respondent simply states that it would “like to co-operate with the deferral”.

4The materials filed by the applicant and copied to the respondent and the union include letters from the Worker’s Safety and Insurance Board (“WSIB). These materials confirm that, as of February 2010, the WSIB has found the applicant to have specified “permanent work restrictions”. One WSIB letter refers to accommodations that render the applicant’s pre-accident job “safe and suitable” and “within her restrictions”, and asks for confirmation that these can be continued. The letter also indicates that the applicant has not been performing duties “that have been reviewed as safe and suitable” because of pain.

5The two copies of grievances filed with the Application each briefly mention “human rights”. The first, dated December 17, 2009, describes the nature of the grievance as “harassment and intimidation”. The second, dated March 4, 2010, refers to failure to accommodate disability.

Is Deferral Appropriate in these Circumstances?

6The 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.

7The Tribunal’s deferral practices relating to grievances based on the same facts and human rights issues as an Application are based, in part, on the fact that grievance arbitrators have the responsibility to implement and enforce the substantive rights and obligations of the Code as well as other employment-related statutes as if they were part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. However, in this case the responses filed by the respondent and the union do no more than record their willingness to have the matter deferred.

8Under the Code, once the applicant has established disability as defined by s.10 and, in the words of s. 11, that a “requirement…exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member”, a procedural and substantive duty to accommodate to the point of undue hardship is triggered. Given that the respondent has not been required to file a full Response, it is not surprising that nothing in the materials filed to date suggests that whatever accommodation has been offered the applicant has been assessed in the light of this standard. However, neither the respondent nor the union have indicated whether the respondent has responded to the WSIB’s query as to whether the accommodations identified by the WSIB as “safe and suitable” can be continued at all, and if so what the response was to the letter from the WSIB.

9Neither the respondent nor the union have given information concerning progress on the grievances filed December 17, 2009 or March 4, 2010.

10In these circumstances, the respondent and union have not given sufficient information that I can be satisfied that it would be appropriate to defer the Application, but neither has the applicant provided reasons not to defer. Under the circumstances, the parties and the union will be given a further 20 days from the date of this Interim Decision to make submissions, in the light of the summary above, as to reasons why the Application should not be deferred or further reasons why it should be deferred.

11I am not seized of this matter.