McKinney v. Metro Ontario, 2010 HRTO 2331

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christina McKinney

Applicant

-and-

Metro Ontario Inc.

Respondent

-and-

Retail Wholesale Canada/CAW Division, Local 414

Intervener

INTERIM DECISION

Adjudicator: Ena Chadha

Date: November 23, 2010

Citation: 2010 HRTO 2331

Indexed as: McKinney v. Metro Ontario

1The applicant filed an Application on September 14, 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. The applicant alleges that the respondent has discriminated and harassed her because of her disability-related needs and failed to accommodate her disability.

2The Application was served on the respondent and the applicant’s union, Retail Wholesale Canada/CAW Division, Local 414 (“Local 414”), as a named affected party.

3On October 18, 2010, Local 414 filed a Request to Intervene. In its Request to Intervene, Local 414 indicates that it does not seek to actively participate in the hearing, but rather asks to reserve its right to participate if the applicant makes allegations against the union or about the conduct of the union.

4Although Local 414 filed a Form 23 confirming delivery of the Request to Intervene on the parties by way of courier on October 18, 2010, the applicant indicates that she did not receive a copy of the Request to Intervene at this time. The applicant opposes the Request to Intervene and submits that the union has failed to protect her interests. The respondent does not take a position with respect to the union’s request to intervene

5On October 26, 2010, the respondent filed a Response, where it requests the Tribunal defer consideration of the Application pending the completion of an outstanding grievance regarding the applicant’s employment termination.

6On November 9, 2010, the applicant filed a Reply and indicates that she opposes the request to defer because her union has not provided adequate representation and because her grievance is limited in scope.

REQUEST TO DEFER

7The 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.

8Along with its Response, the respondent included copies of the applicant’s grievance and indicates the parties and the union have recently been engaged in discussions regarding the grievance.

9Based on the materials filed with the Tribunal, it appears that the grievance is on-going and raises concerns with respect to the alleged discriminatory dismissal and failure to accommodate. The Application and grievance overlap with respect to the facts and the remedy sought with respect to reinstatement. I conclude that the subject matter of the Application and the grievance are substantially similar.

10In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the applicant’s grievance.

REQUEST TO INTERVENE

11The applicant’s union seeks to intervene in accordance with Rules 11 of the Tribunal’s Rules of Procedure. The union represents the applicant in the grievance arising out of the facts that give rise to this Application. The union indicates that it continues to represent the applicant in the workplace with respect to her grievance and that discussions with the employer are on-going.

12In 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 grievance.

13Given 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.

14Where 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).

15I am not seized of this matter.