Davis v. United Food & Commercial Workers Canada, Local 333, 2010 HRTO 394

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher Davis

Applicant

-and-

United Food & Commercial Workers Canada, Local 333, Jeff Ketelaars, Paul Bedi, Brian Parsons, Melisa Lopersbeck and Susan Babcock

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: February 22, 2010

Citation: 2010 HRTO 394

Indexed as: Davis v. United Food & Commercial Workers Canada, Local 333

1This Application, filed on September 4, 2009, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), involves allegations of discrimination on the basis of colour, ethnic origin, and disability in the context of employment. The applicant also alleges reprisal or threat of reprisal.

2In essence, the applicant is alleging that he was unfairly terminated from his employment and inadequately represented by the United Food & Commercial Workers Canada, Local 333 ("Union"). Although he does not identify creed as a ground of discrimination in the Application, the applicant seems to also allege that the employer and the Union failed to properly consider both his disability-related and religious needs.

3This Application appears to name as respondents the applicant's Union, at least two employees or representatives of the Union, as well as three individual respondents who appear to be managers with the applicant's former employer. The former employer is not named as a respondent.

4The Union and the individual respondents Jeff Ketelaars and Paul Bedi (collectively, the "Union Respondents") have filed a Request for an Order During Proceedings ("Request") seeking:

a. the addition of G4S Security Service Canada Ltd., the applicant's former employer, as a respondent;

b. the removal of Paul Bedi as a respondent;

c. the correction of alleged factual inaccuracies contained in a letter from the applicant to the Registrar;

d. the deferral of the Application pending the outcome of a grievance proceeding;

e. an extension of time for the filing of the Response; and

f. particulars.

5The remaining respondents have filed a Response to the Request indicating that they do not object to the orders requested. The applicant has not filed a Response to the Request and the time for doing so has elapsed.

Request to defer

6The applicant has filed two grievances. In the first, dated May 1, 2009, he alleges that he was unjustly reprimanded, removed from work without explanation, and discriminated against on the basis of his religious beliefs. He also alleges that his employer unilaterally changed its practice of accommodating his schedule, thus altering the terms and conditions of the applicant's employment.

7In the second grievance, dated August 10, 2009, the applicant alleges that his employer unjustly terminated his employment for his participation in the trade union.

8Based on the Union's and the applicant's submissions, it appears that grievance meetings have taken place and that the Union has sought legal advice as to whether to refer the matter to arbitration. The applicant and the Union's counsel have met, but a further meeting is necessary before counsel can provide the requested opinion to the Union.

9The Union has sought a deferral of the Application on the basis that an ongoing grievance deals with the subject matter of the Application. For the reasons that follow, I find that, while there is some overlap in the Application and the grievance proceeding, a deferral is not appropriate in the circumstances.

Analysis

10Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure ("Rules").

11Rule 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.

12The 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.

13Some 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.

14There is clear overlap between the grievances filed and the Application. At least some of the allegations in the grievances are also raised in the Application against Brian Parsons, Melisa Lopersbeck, and Susan Babcock.

15However, the Application raises allegations against the Union which are not part of the grievance proceeding. The essence of the allegations against the Union, as I understand them, is that Mr. Ketalaars made a discriminatory comment regarding the applicant's religion, that the Union did not adequately represent him, and that Union and employer representatives "concocted" to "use the force of intimidation and harassment".

16The Tribunal does not have a general power to inquire into claims of unfairness outside the areas and grounds listed in the Code. Thus, while the Tribunal cannot generally determine whether the Union adequately represented the applicant in the grievance proceeding, it can inquire into claims that the Union breached the applicant's rights under the Code.

17The allegations against the Union respondents are not the subject of the grievance and the grievance process provides no potential remedies to the applicant for the Union respondent's alleged violations of the Code. I note also that the Union appears to have carriage of the grievance and that the proceeding is at a relatively early stage.

18In different circumstances, it might have been appropriate to defer the Application or parts of the Application. In this case, however, I am concerned that a deferral of any aspect of the Application against any of the respondents would not be just. Given the nature of the allegations of discrimination brought by the applicant against the Union and, in particular, the allegation that the employer and the Union were complicit, I find that it would not be fair, just or expeditious to insist that the grievance proceed to its conclusion before the Application or part of the Application can proceed. In rendering this Decision, I make no finding of whether any discrimination actually occurred. My conclusions are based on the allegations contained in the Application.

19In the circumstances of this case, the Union's Request to defer is denied.

Next steps

20The respondents are directed to file a Response within 20 days of the date of this Decision. In their Responses, they may chose to name the applicant's former employer as an affected party.

21The Tribunal generally requires respondents to file complete responses prior to making preliminary objections: Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180. Once the Responses and the Reply, if any, have been filed, the respondents may seek to have preliminary issues addressed by the Tribunal.

22With regard to the request for particulars, the allegations contained in the Application are sufficiently detailed and, in my view, the respondents are in a position to meaningfully respond to the Application. The respondents may reserve the right to respond to any new information that comes to light through the disclosure process.

23I am not seized of this matter.