Marsha Peterson v. Steve Toker and Rob Tite, 2010 HRTO 37

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marsha Peterson

Applicant

-and-

Steve Toker and Rob Tite

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: January 11, 2010

Citation: 2009 HRTO 37

Indexed as: Peterson v. Toker

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) on July 3, 2009. She alleges discrimination in the context of employment on the basis of disability. She alleges that she was disciplined inappropriately, without proper consideration for the impact of her disability on her behaviour. She also alleges that she was unfairly suspended from work.

Background

2The Application names Steve Toker and Rob Tate as respondents. The style of cause has been amended to reflect the correct spelling of Mr. Tite’s name as indicated in the Response. Both individual respondents are supervisory employees with the applicant’s employer, WIT Logistics Canada Inc (“WIT”). The Application identifies the Teamsters Union Local 938 (“Union”) as an affected party.

3The respondents filed a Response on September 15, 2009. In it, they request that the Application be dismissed because another proceeding (a grievance) has appropriately dealt with the substance of the Application. In the alternative, they request that the Application be deferred because of the ongoing grievance proceeding.

4The respondents argue that they are not proper respondents in this matter and that the Application should be dismissed as a result. The respondents also state that the subject-matter of the Application relates to the Occupational Health and Safety Act (“OHSA”) and is better addressed under that statute. However, it is unclear from the materials filed whether any complaint or process has been initiated under the OHSA.

5On September 22, 2009, the Union filed a Request to Intervene. It advised the Tribunal that two of three grievances filed on behalf of the applicant have been resolved between the Union and WIT. The Union has referred the third grievance, which relates to the applicant’s indefinite suspension, to arbitration.

6The Union asks that the Application be deferred pursuant to section 45 of the Code until the completion of the grievance process.

7The Applicant has not responded to the Request to Intervene and has not filed a Reply. The time for doing so has now elapsed.

Analysis

The Union’s request to intervene

8The Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 that:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

9I am satisfied that the Union has the requisite interest in this Application. The Union is granted leave to intervene. The terms of the intervention at any hearing of this matter can be determined by the adjudicator hearing the matter.

The respondents’ Request to dismiss

10The respondents suggest that the Application is “not a proper Application” because it does not identify the appropriate respondents. The respondent Toker is a shift supervisor with WIT and was, according to the respondents, performing his duties at all materials times. The respondent Tite is WIT’s plant manager and, according to the respondents, had no involvement with the applicant. It may be that the most appropriate respondent is WIT. In this regard, it is certainly open to one of the parties to request an order adding WIT as a respondent or replacing the individual respondents with WIT. However, on the face of the documents filed with the Tribunal, the Application contains allegations which fall within the Tribunal’s jurisdiction or power to decide. It is not appropriate to dismiss the Application in the circumstances.

11The respondents’ Request to dismiss is denied.

The Occupational Health and Safety Act

12It is not clear whether a process has been initiated under the OHSA that deals with the subject matter of the Application. It is also unclear to me whether the respondents are seeking a deferral a dismissal of the Application on the basis of the OHSA.

13Prior to amendments which came into effect on June 30, 2008 the Code allowed the Ontario Human Rights Commission to dismiss complaints on the basis that the could best be dealt within another forum. These provisions of the Code are no longer in effect.

14Under the current provisions of the Code, a matter that raises issues within the Tribunal’s jurisdiction will not generally be dismissed simply because other venues were available to the applicant. The Tribunal can, however, dismiss an application where another proceeding has appropriately dealt with all or part of its substance.

15As I explain below, the Tribunal may defer an application in accordance with its Rules of Procedure (“Rules”) where an ongoing proceeding deals with the same facts and issues as the Application.

16If the respondents are seeking to defer or dismiss the Application on the basis of an OHSA process, they may file a Request for an Order During Proceedings. Any such Request should identify the status of the OHSA process.

The grievance proceeding

17Based on the material filed with the Tribunal, the grievance process appears to be ongoing. Although two of the three grievances were resolved by way of an agreement between the Union and WIT the third matter has been referred to arbitration. As I indicated, under the current provisions of the Code, it is not open to the Tribunal to dismiss an application simply because an ongoing process is addressing the same subject-matter.

18For this reason, the respondents’ Request for an early dismissal of the Application on the basis of a grievance is denied. However, there is a significant issue regarding whether the Application should be deferred pending the outcome of the grievance proceeding.

19Rule 14.1 of the Rules states:

The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

The 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.

20Some 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 types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer the Application, having regard to the status of each proceeding and the steps that have been taken to pursue them.

21Within ten days of the date of this Interim Decision, the applicant may respond to the Union and the respondents’ submissions on the question of deferral. She may do so in writing, by delivering her submissions to the respondents and the Union and filing them with the Tribunal. In her submissions, the applicant should advise the Tribunal of the status of the ongoing grievance, particularly whether any arbitration dates have been scheduled. If she fails to make any submissions the Tribunal will decide whether to defer based on the material in the file.

22I am not seized of this matter.