Deolinda Marques v. Hurley Corporation, 2010 HRTO 174

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deolinda Marques

Applicant

-and-

Hurley Corporation, Evelyn Hewitt, Joe Cunha, Manny Silva, SEIU Local 2 Brewery General & Professional Workers’ Union and United Food & Commercial Workers Ontario UFCW Local 175

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: January 27, 2010

Citation: 2010 HRTO 174

Indexed as: Marques v. Hurley Corporation

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), involves allegations of discrimination on the basis of race, ancestry, place of origin, disability, creed, and sex in the context of employment. The applicant also alleges reprisal or threat of reprisal.

2In its Response, Hurley Corporation (“Hurley”) has requested an early dismissal of the Application because it says a grievance proceeding has appropriately dealt with the substance of the Application. Hurley also mentions that the applicant is involved in an appeal with the Workers’ Safety and Insurance Board (“WSIB”).

3The applicant has not filed a Reply and the time for doing so has elapsed.

4Section 45.1 of the Code states:

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.

5Tribunal jurisprudence has considered the issues under section 45.1 as two distinct questions: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the Application.

6In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal held that, at the very least, a “proceeding” includes an adjudicative process established under a statutory regime.

7It is clear that a grievance arbitration constitutes a proceeding under the Code. See, for example, Noble v. York University, 2009 HRTO 1201.

8However, at issue is a meeting between the employer and a union representative. The meeting did not result in the conclusion of the grievance. In the circumstances, I am not satisfied that the substance of the Application has been “appropriately dealt with” for the purposes of s. 45.1 of the Code.

9While Hurley identifies the WSIB process as an exemption in its Response, it provides no information regarding how the WSIB process might be relevant to the matter before the Tribunal. On the basis of the material before me, I cannot conclude that the WSIB process is reason to defer or dismiss the Application.

10The Request for Dismissal is denied.