Vesely v. Zehmart, 2010 HRTO 2242

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anna Vesely

Applicant

-and-

Zehmart Inc., and Connie Shantz

Respondents

-and-

United Food and Commercial Workers Union, Local 1977

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: November 9, 2010

Citation: 2010 HRTO 2242

Indexed as: Vesely v. Zehmart

1The applicant filed an Application on February 11, 2010 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which she alleges discrimination with respect to employment on the basis of disability. In her Application, the applicant notes that the facts relied upon in her Application are part of a grievance.

2The Application was served on the respondents and the applicant’s union as a named affected party.

3On March 22, 2010, the respondents filed their Response in which they request the Tribunal defer the Application pending the resolution of the applicant’s grievance. The respondents submit that the applicant, through her union, has filed a grievance regarding the same events and allegations contained in her Application.

4On August 25, 2010, the applicant’s union filed a Request to Intervene. The union submits that it seeks to intervene in this Application because it currently represents the applicant with respect to an existing grievance and is in the midst of attempting to negotiate the terms of the applicant’s return to work.

5On September 17, 2010, the applicant filed a response to the Request to Intervene indicating that she believed the grievance process would not resolve her concerns. On October 19, 2010, the applicant filed a Reply.

REQUEST TO INTERVENE

6The applicant’s union seeks to intervene in accordance with Rules 11 of the Tribunal’s Rules of Procedure. The union represents the applicant in an on-going grievance arising out of the facts that form the basis of this Application. The union indicates that it continues to represent the applicant in discussions with the employer and that the grievance has been referred to arbitration.

7In accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by the union, the union’s request to intervene is granted. The union has a significant interest in the outcome of the Application as the applicant’s exclusive bargaining agent and the entity with carriage of the applicant’s grievance.

REQUEST TO DEFER

8The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

9All parties have confirmed that there is a grievance regarding the subject matter of the Application, specifically the applicant’s request for accommodation and the issue of suitable modified work. The union has expressed its support of the respondents’ request to defer. Both the respondents and the union indicate that arbitration is pending.

10Based on the materials filed with the Tribunal, it appears that the applicant’s grievance raises the same concerns with respect to discrimination and failure to accommodate as alleged in the Application. The Application and grievance appear to seek similar remedies. I conclude that there is significant overlap in the subject matter of the Application and that of the existing grievance.

11In these circumstances, deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the grievance process.

12Given the Tribunal’s decision to defer this Application, the extent and the nature of the union’s participation in the proceeding can be determined when and if the matter is brought back before the Tribunal.

13Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

14I am not seized of this matter.