Meikle v. Mississauga Seating Systems, 2010 HRTO 1927

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maysadis Meikle

Applicant

-and-

Mississauga Seating Systems, a division of Magna Seating Systems Inc.

Respondent

-and-

CAW-Canada, Local 1256

Intervenor

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: September 22, 2010

Citation: 2010 HRTO 1927

Indexed as: Meikle v. Mississauga Seating Systems

1The applicant filed this Application on February 19, 2010 under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination in employment on the basis of race, disability and reprisal. Among other things, the applicant alleges that the respondent failed to appropriately respond to an alleged assault by a co-worker and thereafter she was treated unfairly and harassed by the respondent employer. The applicant states that the facts of her Application are part of a proceeding still in progress at the Ontario Labour Relations Board (“OLRB”).

2A Response has been filed. The respondent seeks deferral of the Application to the proceeding at the OLRB which is identified as a section 74 application filed under Labour Relations Act 1995, S.O. 1995, c. 1, Sched. A, as amended, alleging that the applicant’s union failed to represent the applicant fairly when it investigated her allegations of harassment and discrimination. The respondent has included a copy of the application filed at the OLRB.

3A Request to Intervene has been filed by the applicant’s union, CAW-Canada, Local 1256. No party has objected to the Request and the time for responding has elapsed.

4This Interim Decision deals with the Union’s Request to Intervene and the respondents’ request to defer pending the outcome of the proceeding at the OLRB.

Request to Intervene

5As the Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, a union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents. Having regard to the submissions made and material filed, I am satisfied the union has the requisite interest in the Application. Accordingly, the union’s Request to intervene is granted. The scope of the Union’s intervention will be determined by the adjudicator hearing the matter.

DEFERRAL

6Pursuant to section 45 of the Code, the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). In each case, the Tribunal must 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.

7In its Response, the respondent argues that the Application should be deferred because otherwise it will be required to defend against two proceedings dealing with the same factual issues at the same time. The respondent states that this would result in an unproductive use of scarce judicial resources for the Tribunal and the OLRB. Further, the respondent notes that it is an intervenor in the proceeding at the OLRB and there is the potential risk of overlapping remedies being awarded because the applicant seeks a monetary remedy in each.

8I do not find that this is an appropriate case to defer. While there is clearly overlap in the factual circumstances underlying each proceeding, the legal issues and remedies sought are not the same. The Application before the Tribunal alleges discrimination by the respondent employer under the Code. The application before the OLRB is about an alleged breach of the union’s duties towards the applicant under section 74 of the Labour Relations Act, 1995, and in particular, whether the union acted in a manner which was arbitrary, discriminatory or in bad faith. While the respondent has intervened in the latter proceeding, it is not defending itself against allegations in that proceeding.

9Further, the remedy sought in each proceeding is different. In the Application, the applicant seeks implementation of certain recommendations from a human rights investigation report and monetary damages for pain, mental suffering and poisoned environment from the respondent, whereas in the application before the OLRB the applicant requests that the union and her employer work together or separately to provide a union that is effective and requests a monetary settlement for the union’s alleged failure to represent her.

10The Application will continue to be processed. The applicant and respondent are directed to advise the Registrar in writing within ten days of the date of this Interim Decision of whether or not they wish to participate in mediation, with a copy to the other parties and the union. If the parties do not agree to mediation, the Application will be scheduled for hearing.

11The Tribunal notes that the respondent has argued that certain of the applicant’s allegations are untimely and therefore the Application should be dismissed. This argument will be addressed, if necessary, by the adjudicator assigned to hear the Application.

12I am not seized of this Application.