Frank Mazzei v. General Motors of Canada Limited, 2010 HRTO 2388

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Frank Mazzei

Applicant

-and-

General Motors of Canada Limited

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: December 1, 2010

Citation: 2010 HRTO 2388

Indexed as: Mazzei v. General Motors of Canada

WRITTEN SUBMISSIONS BY

General Motors of Canada Limited, ) David Bannon, Counsel

Respondent )

1This is an Application filed on September 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 indicates in the Application that the facts of the Application are part of a union grievance filed on December 14, 2009 that is still in progress. As a result the Tribunal issued a Notice of Intent to Defer dated October 25, 2010 in which it indicated that it might be appropriate for the Tribunal to defer consideration of the Application pending the resolution of the applicant’s grievance. The Tribunal indicated to the parties and to the applicant’s union, the Canadian Auto Workers (“CAW”) Local 222, that they could make submissions as to why consideration of the Application should or should not be deferred. The Tribunal has received written submissions from the respondent. The Tribunal has received a letter from the CAW dated November 9, 2010 stating that the CAW has Grievance No. B92935 open for the applicant.

3The respondent submits that the Tribunal should defer the Application on the basis that another proceeding has been initiated by the applicant, namely his grievance and that the grievance arbitration process can address the issues raised by the applicant in his Application. The respondent submits that an arbitrator is empowered to apply the Code and to order appropriate remedies. The respondent submits that deferral will have the effect of avoiding a multiplicity of proceedings that might result in conflicting decisions in respect to the same legal issues arising from the same events.

4The respondent does not identify what stage the applicant’s grievance has reached but there is no information to suggest that it is not proceeding. I note the CAW’s letter of November 9, 2010 indicating that the grievance is still open.

DECISION

5The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1 of the Tribunal’s Rules of Procedure). The purpose of deferring an application is to ensure that proceedings dealing with some or all of the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Given this purpose, the Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

6Having considered the circumstances of this case I order the deferral of the applicant’s Application pending the conclusion of the grievance and arbitration process. I am satisfied that a grievance process is currently proceeding which appears to be based on the issues raised in the Application. If the grievance proceeds to arbitration it will take place before a decision-maker with appropriate remedial authority. 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 as was affirmed by the Supreme Court of Canada (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

7The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the grievance process has been concluded.

8I am not seized.