Human Rights Tribunal of Ontario
BETWEEN:
Nick Anastasakis Applicant
-and-
Alumicor Ltd. Respondent
INTERIM DECISION
Adjudicator: Jay Sengupta Date: October 1, 2010 Citation: 2010 HRTO 1962 Indexed as: Anastasakis v. Alumicor
1This is an Application filed on May 11, 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, and encloses a copy of the grievance filed on his behalf by his union, United Steelworkers of America (the “union”).
3The Tribunal issued a Notice of Intent to Defer on August 19, 2010 and invited submissions from the parties and the union within 14 days. Submissions have been received from the respondent and the union. The applicant has not filed any submissions and his deadline for doing so has now passed.
4The union takes no position on the issue of deferral but has provided an update on the grievance process; specifically that it is set to proceed before Arbitrator Dana Randall in January, 2011.
5The respondent employer points out that the termination of the applicant’s employment is the central issue in both the grievance and the Application and that the remedy sought in both venues is reinstatement. It argues for deferral and confirms that the matter is scheduled to proceed before the Arbitrator in January, 2011.
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 covered by the Application and those referred to in the grievance as well as the remedies sought. The arbitration is scheduled to proceed within a few months. 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.
Dated at Toronto, this 1st day of October, 2010.
“Signed by”
_____________________________________
Jay Sengupta Vice-chair