Hind v. KSA Group of Companies/KSA Staffing, 2010 HRTO 1932

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

April Hind

Applicant

-and-

KSA Group of Companies/KSA Staffing and Metro Waste Paper Recovery c.o.b. as Municipal Recycling Services Inc.

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: September 23, 2010

Citation: 2010 HRTO 1932

Indexed as: Hind v. KSA Group of Companies/KSA Staffing

1This is an Application filed on June 10, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges reprisal and discrimination in employment on the basis of disability. This Interim Decision deals with the Tribunal’s Notice of Intent to Defer the Application pending the outcome of a grievance proceeding.

INTENT TO DEFER

2The Application indicates that the facts of the Application are part of another proceeding, a union grievance, which is still in progress. The applicant submitted a Grievance Form dated April 19, 2010 which appears to include allegations made in her Application, namely that the respondents failed to provide her with modified work. The Tribunal therefore issued a “Notice of Intent to Defer” to the parties and to the applicant’s union, requesting submissions on whether it is appropriate to defer the consideration of the Application pending the resolution of the grievance.

3The applicant and the union responded on August 11, 2010 to the Notice with brief submissions that oppose the deferral of the Application because the respondents have not yet confirmed that they will not raise objections to the “arbitrability” of the applicant’s grievance, and if an arbitrator does not hear and determine the grievance on its merits, then there would be no forum to determine the substance of the Application. The applicant and the union did not dispute the Tribunal’s observation that some or all of the issues in dispute in the Application are ongoing in a grievance proceeding.

4On August 19, 2010, the respondents responded to the Notice of Intent to Defer with submissions which argue that the alleged discrimination in the Application is identical to what is being grieved, specifically, the alleged failure by the respondents to accommodate the applicant. While the respondents did not agree to refrain from objecting to the “arbitrability” of the grievance, they submit that it is reasonable to believe that the allegations that have given rise to the Application will be appropriately dealt with through the arbitral process. They urged that the Application be deferred until the grievance has been properly dealt with through the grievance procedure as set out in the Collective Agreement.

DECISION

5Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative. 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.

6Deferral of an application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject-matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them: Klein v. Toronto Zionist Council, 2008 HRTO 189.

7The 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.

8In this case, the issue that will be addressed in the arbitration hearing is that the respondent failed to accommodate the applicant's disability by providing modified work. This appears to be the primary issue in the Application. Accordingly, there is a significant overlap of facts and human rights issues in the grievance proceeding and the Application, which makes deferral appropriate. I am also satisfied that some of the remedies being sought in the Application, including compensation for lost earnings and return to work, may be provided by grievance arbitrators. 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).

9The applicant and the union’s concern that the grievance may not reach the stage where it is before an arbitrator does not mean that there would be no forum to determine the substance of the Application. The applicant may seek to bring the Application back on before the Tribunal when the grievance procedure has concluded.

10Given the significant overlap of facts and issues in the grievance proceeding and the Application, and given a grievance arbitrator’s responsibility to implement and enforce the Code, the Application is deferred.

11Following the conclusion of the grievance procedure, the applicant may seek to bring the Application back on before the Tribunal. In that situation, the applicant should follow Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure (available on our website, www.hrto.ca).

12I note that there is an outstanding preliminary issue raised by the respondents, respecting the improper naming of Metro Waste Paper Recovery c.o.b. as Municipal Recycling Services Inc. This issue will be dealt with when and if the Application proceeds after the conclusion of the grievance procedure.

13I am not seized.