Dany Jacob v. M-Con Products Inc., 2010 HRTO 1943

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dany Jacob

Applicant

-and-

M-Con Products Inc.

Respondent

-and-

Labourers International Union of North America, Local 527

Intervenor

INTERIM DECISION

Adjudicator: Mary Truemner

Date: September 23, 2010

Citation: 2010 HRTO 1943

Indexed as: Jacob v. M-Con Products

1This is an Application filed on February 24, 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 discrimination in employment because he believes that the respondent’s failure to recall him after being laid off from work is due to his disability.

2The applicant is a member of the Labourers International Union of North America, Local 527 (“the union”). The respondent filed a Response requesting a deferral of the Application pending the outcome of a grievance proceeding filed by the union on behalf of itself and the applicant. The Response also names the union as an affected party, and the union filed a Request to Intervene to which the applicant did not respond.

3This Interim Decision deals with the union’s Request to Intervene and with the respondent’s request to defer the Application.

DECISION ON Request to Intervene

4A union almost always has an interest in a human rights application involving a member, and unless there are exceptional circumstances, the Tribunal will grant the bargaining agent intervenor status when requested. The union in this case was the bargaining agent for the applicant, and filed a grievance on his behalf with respect to the main event at issue in the Application, specifically, the respondent’s failure to recall the applicant after he had been laid off. I am satisfied that the union has an interest in the Application, and the Request to Intervene is granted.

REQUEST TO DEFER

5The Application indicates that the facts of the Application are part of another proceeding, a union grievance, which is still in progress. After describing the alleged events which are the basis for the allegation of discrimination, the Application indicates that the union was advised of the problem, and a formal grievance was filed in June 2009.

6In its Response to the Application, the respondent requests that the Application be deferred until the completion of the grievance which alleges that the respondent violated the Collective Agreement by failing to recall the applicant back to work. The respondent indicated that the grievance is before an arbitrator. In its Request to Intervene, the union requested deferral of the Application also.

7In serving the applicant with the respondent’s Response, the Tribunal noted that the respondent has asked the Tribunal to defer the Application on the grounds that there is an ongoing proceeding before another decision-maker or body which raises some or all of the same facts and issues presented in the Application. The Tribunal invited the applicant to Reply to the Response by June 23, 2010, but the applicant has not chosen to do so.

DECISION ON DEFERRAL

8Pursuant 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, at the request of any party. 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.

9Deferral 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.

10The 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.

11In this case, the issue that will be addressed in arbitration, already underway, is that the respondent failed to recall the applicant after he had been laid off. 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 wages, pension, vacation pay and benefits, 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).

12Given 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.

13Following 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).

14I am not seized.