Borba v. Jungbunzlauer Canada, 2010 HRTO 1832

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mike Borba

Applicant

-and-

Jungbunzlauer Canada

Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: September 8, 2010

Citation: 2010 HRTO 1832

Indexed as: Borba v. Jungbunzlauer Canada

1This is an Application filed on July 16, 2010 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. He has also forwarded a copy of the grievance filed on his behalf by his union, United Food and Commercial Workers Union Locals 175 & 633 (the “union”).

3On August 9, 2010, the Tribunal sent the parties and the union a Notice of Intent to Defer and invited submissions within 14 days. The Notice was subsequently re-sent to the union on August 16, 2010 as the previous correspondence had been sent to an incorrect address.

4The respondent employer has filed submissions. It seeks deferral as it argues that the facts and issues outlined in the Application are the same as those being considered as part of the grievance filed on the applicant’s behalf by his union. The respondent employer also indicates that a grievance meeting was held on July 29, 2010, after which the union asked for an extension of time to the period permitted to refer the matter to arbitration.

5Neither the applicant nor his union made submissions or provided an update on the grievance process.

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, it is apparent 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 his human rights issues have not been adequately addressed, he 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.

12I am not seized.