Patrick Perrier v. Lear Canada, 2010 HRTO 334

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patrick Perrier

Applicant

-and-

Lear Canada

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: February 12, 2010

Citation: 2010 HRTO 334

Indexed as: Perrier v. Lear Canada

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) which alleges discrimination in employment on the basis of disability. This Interim Decision deals with the respondent’s request that the Tribunal defer the Application pending the outcome of a grievance proceeding.

BACKGROUND

2The applicant has a long history of employment with the respondent. Since 1992, when he suffered a head injury, he has needed to seek accommodations in the form of modified work. He last worked at the respondent’s plant in July, 2008, when his Fourth Work Trial was terminated, and he again commenced long term disability benefits, but he is seeking to return. In his Application, he states that he is capable and willing to return to work, but the respondent is not providing him with work, claiming that it cannot accommodate his disability. The applicant also alleges that he was harassed at work because of his disability.

REQUEST TO DEFER

3The applicant filed a grievance with his bargaining agent CAW and its Local 1524 (“the Union”) in September 2008 pursuant to their collective agreement. The grievance states that the applicant was “denied the right to return to work.” According to the respondent, the grievance has been proceeding through the grievance procedure, with a pre-arbitration proceeding on November 7, 2009 which did not resolve anything. The respondent understands that referral by the Union to arbitration is pending.

4For that reason the Union has requested that the Application be deferred until the conclusion of the grievance proceedings.

5The applicant did not choose to file a Reply, and has therefore not addressed the respondent’s request for a deferral although he was specifically requested to do so.

6Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal may defer consideration of an Application, on such terms as it may determine, at the request of any party. 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.

7Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Some of the factors that may be 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 type 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: Klein v. Toronto Zionist Council, 2008 HRTO 189.

8The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

9As stated in Leblanc v. Toronto (City), 2009 HRTO 960, even where concurrent legal proceedings do not clearly engage human rights issues, but raise facts or issues which overlap with those before the Tribunal, the Tribunal will consider whether to defer based on other factors, such as the subject matter of the other proceeding, its nature, the type of remedies available, the status of the other proceeding and steps that have been taken to pursue it. 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).

DECISION

10In this case, one of the two issues in the Application, that the respondent is not providing the applicant with work, is something that will be squarely before the arbitrator. Accordingly, there is a significant overlap of facts and human rights issues in the grievance proceedings and the Application, and the arbitrator will have the jurisdiction to address human rights violations and provide remedies if the applicant puts those issues before the arbitrator.

11Given the significant overlap of facts and issues in the grievance proceeding and the Application, and given a grievance arbitrator’s responsibility to implement and enforce the Code, the respondent’s request to defer the Application is granted.

12Following the conclusion of the grievance and arbitration procedure, the applicant may seek to bring the Application back on before the Tribunal. In that situation, the applicant should follow Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure (available on our website, www.hrto.ca).

STANDING OF OUTSTANDING REQUESTS

13There is an outstanding Request to Intervene in this proceeding by the applicant’s trade union. As well, the respondent has made requests in its Response for particulars and disclosure. The Tribunal will address these requests when and if this Application is brought back on before the Tribunal.

14I am not seized.