Marsha Peterson v. Steve Toker and Rob Tite, 2010 HRTO 504

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: March 5, 2010

Citation: 2010 HRTO 504

Indexed as: Paterson v. Toker

WRITTEN SUBMISSIONS

Marsha Peterson, Applicant ) On her own behalf

Steve Toker and Rob Tite, Respondents ) Mark E. Geiger, Counsel

Reasons for Decision

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.

2The applicant’s union, the Teamsters Local Union 938 (“Union”), has advised the Tribunal that three grievances had been filed on behalf of the Applicant. Two of three grievances have been resolved between the Union and the respondents. The Union has referred the third grievance, which relates to the applicant’s indefinite suspension, to arbitration.

3In an earlier Interim Decision in this matter, 2009 HRTO 37, the Tribunal requested submissions from the applicant regarding the Union’s request for deferral. The Tribunal specifically directed the applicant to advise as to the status of the grievance.

4The applicant filed submissions objecting to a deferral of the Application. She explains that because the respondent is relocating, she will no longer be a paying union member as of March 1, 2010. The applicant is also concerned that a deferral will delay the determination of the issues raised in the Application.

5The applicant did not, however, advise of the status of the grievance. Nor did she assert that the subject matter of the grievances differs from that of the Application.

6The respondents filed additional submissions on February 18, 2010, correcting what they felt were errors in the applicant’s representations. The respondents indicated that they are not relocating; rather, the part of the plant in which the applicant worked closed as of February 19^th. The respondents continue to exist as an entity and will continue to operate part of the plant until approximately April 2010. The respondents emphasize that they and the Union have an obligation to address existing grievances pursuant to the Ontario Labour Relations Act.

7Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure (“Rules”).

8Rule 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.

9The 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.

10On the basis of the materials filed with the Tribunal, I conclude that the grievance and the Application are based on the same facts and issues. In the circumstances, I am not persuaded that it is appropriate to deviate from the Tribunal’s general practice of deferring an application where a grievance on the same facts and issues is ongoing.

11Accordingly, the Application will be deferred pending the completion of the grievance process.

12The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which a party may request that the Application proceed.

13I am not seized of this matter.