Ascenzi v. BFI Canada, 2010 HRTO 2406

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fernando Ascenzi

Applicant

-and-

BFI Canada Inc. and Teamsters Union Local 419

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: December 2, 2010

Citation: 2010 HRTO 2406

Indexed as: Ascenzi v. BFI Canada

1The applicant filed an Application on July 15, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability and age.

2The Application alleges that the applicant experienced a workplace injury in February 2010, following which he was placed on modified duties to accommodate his disability. The applicant alleges that in June and July 2010 the respondent employer notified him that there was no longer any light duties available and sent him home indefinitely. The applicant alleges that, around this time, the respondent employer hired younger workers to perform light duty work. The applicant alleges that the respondent employer refused to accommodate his disability and that the respondent union failed to support him with respect to this situation.

3The respondent employer filed its Response on September 22, 2010. The respondent union filed its Response on October 12, 2010, wherein it requests the Tribunal to defer the Application pending the resolution of the applicant’s grievance. The respondent union also filed a Request for a Summary Hearing.

4The purpose of this Interim Decision is to deal with the issue of whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of the grievance process.

5On November 25, 2010, the applicant filed a Reply, including submissions in response to the request to defer. No submissions were received from the respondent employer.

PARTIES’ SUBMISSIONS

6The respondent union submits that an unjust dismissal grievance was launched subsequent to the Application as a result of the August 31, 2010 termination of the applicant’s employment. This grievance has been referred to arbitration before Arbitrator Brian Sheehan. Both employer and union have agreed that the grievance will include the issue of the employer’s alleged failure to accommodate. As such, the respondent union submits that the Application should be deferred pursuant to section 45 of Code until the conclusion of the grievance process.

7The applicant contests the deferral request. The applicant submits that the Tribunal should not defer his Application because he was forced to file this Application against the union because the union did not provide him with satisfactory support and because there is no evidence that the scope of the unjust dismissal grievance will include the accommodation issues.

DECISION

8The 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). 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. The Tribunal will generally defer an application where there is an ongoing grievances under a collective agreement based on the same facts and issues.

9Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are: the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them: see Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

10There appears to be a clear factual overlap between the Application and the ongoing grievance with respect to the applicant’s dismissal. The main allegation in the grievance concerns the respondent employer’s failure to return the applicant to work and the matters raised in the Application also concern the same issues. As such, the allegations raised in this Application are part of the grievance arbitration proceeding. The applicant did not identify any particular factors which would cause the Tribunal to depart from its normal approach.

11In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the final determination or resolution of the grievance. I appreciate that the applicant believes that his union has not provided him with adequate support; however, there is no indication that the human rights issues will not be resolved or dealt with at arbitration. 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).

12If the applicant believes on conclusion of the grievance process that his human rights issues have not been adequately addressed, he may ask to have this Application brought back on before the Tribunal and the Tribunal will consider his request.

13The Application will therefore be deferred pending the completion of the grievance process. The 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.

14I am not seized of this matter.