Human Rights Tribunal of Ontario
B E T W E E N:
Lynn Lythgoe-Giroux
Applicant
-and-
Loblaw Companies Ltd.
Respondent
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: Lythgoe-Giroux v. Loblaw Companies
1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination on the basis of disability in the context of employment.
2In essence, the applicant alleges that the respondent failed to accommodate her, treated her unfairly in light of her disability, and orchestrated the termination of her benefits.
3The applicant and her union, the United Food Commercial Workers Union (“Union”), have filed and are pursuing grievances related to:
a. the respondent’s failure to provide long-term disability benefits;
b. the respondent’s failure to accommodate; and
c. the applicant’s suspension.
4The respondent has filed a Response in which it denies the allegations of discrimination and seeks the deferral of the Application pending the determination of ongoing grievance proceedings.
5The applicant has filed a Reply in which she reiterates that a fourth grievance, alleging discrimination based on disability, was filed but has been withdrawn. The applicant argues that, as this particular grievance has been abandoned, it would be appropriate for the Application to proceed. She expresses concern that, if consideration of the Application is deferred, the alleged discrimination may never be addressed.
6The Union has not sought to intervene in the proceedings before the Tribunal. However, it filed written submissions confirming that the three above-mentioned grievances were scheduled for arbitration on August 31, 2010. The Union confirms that the grievance alleging discrimination on the basis of disability has been withdrawn on a without prejudice basis.
REQUEST TO DEFER
7Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure (“Rules”).
8Rule 14.1 of the Rules states:
The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.
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.
10Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.
11In this case, a number of the facts and issues raised by this Application are part of the three ongoing grievances. The issues in dispute all relate to alleged failure to accommodate and both refer to the applicant’s loss of benefits.
12I appreciate that the applicant is in a difficult position. She appears to have withdrawn the grievance alleging discrimination with the expectation that these allegations would be addressed by the Tribunal. However, in my view, in light of the significant overlap between the Application and the three ongoing grievances, it would not be appropriate to allow the Application to proceed at this stage. To do so would create two concurrent proceedings dealing with the similar and overlapping issues and facts.
13Importantly, a deferral of the Application is not a dismissal. It does not necessarily mean that the allegations contained in the Application will never be considered by the Tribunal. Once the grievances have been determined, the parties may ask that the Application proceed and that the Tribunal deal with whatever might remain of the merits of the Application.
14The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which a party may request that the Application proceed once the grievance proceeding is complete.
15I am not seized of this matter.
Dated at Toronto, this 21st day of September, 2010.
”signed by”___________
Michelle Flaherty
Vice-chair