Human Rights Tribunal of Ontario
B E T W E E N:
Beverly McLeod Applicant
-and-
U.S. Steel and Ray Berg Respondents
B E T W E E N:
Colleen Hall Applicant
-and-
U.S. Steel and Ray Berg Respondents
Interim Decision
Adjudicator: Jay Sengupta Date: December 10, 2010 Citation: 2010 HRTO 2451 Indexed as: McLeod v. U.S. Steel
1These are two Applications filed on July 22, 2010 and July 26, 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 Applications should be deferred pending the completion of related grievance proceedings.
2Both applicants are employees of the respondent U.S. Steel (Lake Erie Works) at a facility located in Nanticoke. Upon returning to the workplace in April 2010, after a period off work due to layoff, the applicants in both Applications allege they discovered that the area used for the past twenty years by female hourly employees as a washing/showering/changing room on the main floor of the Hot Strip Finishing Mill had been reassigned to salaried male employees for their use. The applicants point out that the salaried employees already have access to another men’s washroom on the main floor.
3The applicants allege that they have been told to use a lesser and dirtier space two floors away from their work station that does not have a shower facility as their washroom. They allege they are experiencing differential treatment based on gender as they are unable to clean themselves at the end of their shifts like their male counterparts and, by way of remedy, they seek the return of the main floor washroom and change facility for their use.
4The respondents have not yet been directed to file a Response.
5The applicants indicate in their Applications that the facts of the Applications are part of several union grievance proceedings that are still in progress. The Tribunal has received copies of two group grievance filed on April 27, 2010 and May 4, 2010 respectively; the first signed by the two applicants themselves and the second by 32 of their co-workers. The applicants are represented in this Application by the USW Local 8782.
6The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). On October 21, 2010, the Tribunal issued a Notice of Intent to Defer and sought the parties’ submissions on the question of deferral of these Applications.
7The applicants, represented by USW Local 8782 indicate that while they support the grievance procedure going ahead, they wish the Tribunal to continue to deal with the Applications and they oppose deferral.
8The respondents support deferral and argue there is no reason for the Tribunal to depart from its usual practice given that the substance of the issues in dispute in both processes is the same.
9The 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.
10The 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).
11The 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.
12In 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 two group grievances. The matter is still live and the grievance processes have not concluded. It is not yet apparent whether or not the grievances will be referred to arbitration.
13If the applicants believe, on conclusion of the process involving the grievance initiated by them on April 27, 2010, that their human rights issues have not been adequately addressed, they may ask to have their Applications brought back on before the Tribunal.
14The Applications will, therefore, be deferred pending the completion of the grievance process initiated by the two applicants, specifically the grievance filed by them on April 27, 2010.
15The 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. If the Applications are brought back on they will proceed together.
Dated at Toronto, this 10th day of December, 2010.
“Signed by”
_____________________________________
Jay Sengupta
Vice-chair