Human Rights Tribunal of Ontario
B E T W E E N:
Geore McIvor Applicant
-and-
Xstrata Nickel Respondent
INTERIM DECISION
Adjudicator: Naomi Overend Date: October 18 2010 Citation: 2010 HRTO 2099 Indexed as: McIvor v. Xstrata Nickel
1This is an Application filed on August 5, 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 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 her behalf by his union, the Sudbury Mine Mill & Smelter Works Local 598 ("Local 598").
2This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of this grievance proceeding. The Tribunal issued a Notice of Intent to Defer ("Notice") on September 16, 2010. The respondent responded to this Notice in support of deferral. It indicates that the parties to the grievance are currently in the process of setting up a hearing to deal with the applicant's grievance. Neither the applicant, nor Local 598 responded to this Notice.
3The 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.
4The 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).
5The 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.
6In this case, it is apparent that the grievance addresses the same issue that is covered by the Application. Moreover, the respondent advises that the grievance has been referred to arbitration. In view of these factors, as well as the absence of any opposition to deferral of this matter, the Application will be deferred pending the completion of the grievance process.
7The 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 18th day of October, 2010.
"Signed by"
_____________________________________
Naomi Overend Vice-chair