Brenda Davidson v. ArcelorMittal, 2010 HRTO 2284

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brenda Davidson

Applicant

-and-

ArcelorMittal

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: November 17, 2010

Citation: 2010 HRTO 2284

Indexed as: Davidson v. ArcelorMittal

1This is an Application filed on June 15, 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 indicated in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress. The applicant's union, CAW-Canada (the "union"), provided the Tribunal with a copy of a grievance filed on the applicant's behalf, dated March 2, 2010. The grievance alleges, among other things, that the respondent failed to provide a harassment-free workplace. The applicant indicated that she was not asking the Tribunal to defer her Application pending the completion of the grievance proceeding.

3On October 12, 2010, the Tribunal issued a Notice of Intent to Defer, with a copy of the Application, and invited submissions from the parties and the union on whether or not the Application should be deferred.

4The respondent submits that the Tribunal should defer consideration of the Application as the applicant's grievance deals with the same subject-matter as the Application and the grievance is scheduled for arbitration on December 8 and 9, 2010.

5The applicant and the union have not provided submissions on the deferral issue and the time for doing so has elapsed.

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 and human rights issues covered by the Application and those referred to in the grievance. There are no circumstances that would cause the Tribunal to depart from its normal approach. The Application will therefore be deferred pending the completion of the grievance process.

10The 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.