Marg Gallant v. Kwik Lok Limited and Cathy Formica, 2010 HRTO 740

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marg Gallant

Applicant

-and-

Kwik Lok Limited and Cathy Formica

Respondents

-and-

Service Employees International Union Local 2, Brewery, General and Professional Workers’ Union

Intervenor

INTERIM DECISION

Adjudicator: Alison Renton

Date: April 1, 2010

Citation: 2010 HRTO 740

Indexed as: Gallant v. Kwik Lok

1This is an Application filed on October 2, 2009, under section of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The Interim Decision deals with a Request to Intervene and also seeks submissions on deferral of the Application.

2The applicant alleges she was discriminated against in employment because of disability when she was terminated in October 2008. She filed a termination grievance through her union, Service Employees International Union Local 2, Brewery, General and Professional Workers’ Union (“the union”) in which she alleged the employer refused to accommodate her (“the grievance”). An arbitration was scheduled for October 2009, but was cancelled to allow the employer to seek further input and guidance from its engineering department about accommodating the applicant.

3As a remedy in the Application, the applicant seeks a financial payment. She also requests modified work, which, presumably, also means that she is seeking reinstatement.

REQUEST TO INTERVENE

4The applicant is represented in the workplace by the union which has filed a Request to Intervene in this Application. Specifically, the union requests that it be permitted to participate in the Application in an attempt to, among other things, ensure consistent treatment of the issues raised by the applicant and to try and ensure consistent results.

5The applicant and the respondents have not responded to the union’s Request to Intervene and the time for doing so has now passed.

6The Tribunal grants leave to the union to intervene in the Application.

DEFERRAL OF THE APPLICATION

7The parties are agreed that the facts of this Application are similar to the grievance that is still in progress. On the Response form and under the section Request to Defer the Application, the respondents indicated that the applicant had filed a grievance but indicated it was not asking the Tribunal to defer the Application. All the parties and the union have agreed to mediation with the Tribunal.

8On February 22, 2010, the Tribunal issued a Notice of Intent to Defer to the parties and the union and requested submissions on why the Application should or should not be deferred in light of the applicant’s grievance.

9The parties and the union filed submissions. The applicant submits that she would like her Application to proceed because no further action has been taken on her grievance since the October 2009 arbitration date was cancelled. The union supports the applicant’s request. It submits that the grievance was referred to arbitration, an arbitrator selected, and a hearing date of October 1, 2009 was scheduled. Before the hearing date, the parties to the arbitration process met to further discuss and clarify the accommodation request(s); the October 2009 hearing date was cancelled to provide the corporate respondent time to seek further input and guidance from its engineering department. The union submits that the corporate respondent has provided the union with a copy of the response from its engineering department and while the parties to the arbitration process have discussed that response, no further hearing date has been set.

10The respondents submit that if the Tribunal decides to defer its consideration of the Application, the grievance may not be heard, let alone decided, for many months. Such result, the respondents submit, would not be consistent with Rule 13 of the Tribunal’s Rules, which states that in conducting its process, the Tribunal will apply the Rules in a manner that will facilitate the fair, just and expeditious resolution of the merits of an application. The respondents submit that mediation with the Tribunal would afford the parties the earliest and best opportunity to resolve the dispute. Further, the respondents submit:

Such a result [proceeding to mediation before the Tribunal] would likely be the most cost effective, as well, as the Applicant, Respondents and union have each pleaded to the Application, so their costs of proceeding to mediation are minimal, in contrast to the investment of time and money that would be required if the grievance arbitration is set in motion.

11The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). 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 of 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.

12The 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).

13The 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.

14I do not accept the respondents’ submissions that proceeding to a mediation before the Tribunal (with mediation at no cost to the parties) is more cost effective than proceeding to an arbitration (with, presumably, costs to the parties for the arbitrator) as a reason not to defer the Application to the grievance procedure. The Tribunal is a publicly-funded adjudicative body and has stated in many decisions that it has a responsibility to ensure that public resources are used effectively. It has confirmed this responsibility when addressing requests for hearing adjournments, concerns about a party not attending a scheduled hearing, and concerns about unnecessarily lengthy hearings (see, for example, Vallentyne v. Royal Canadian Legion, 2009 HRTO 660; Neilon v. Bourgeois Motors, 2010 HRTO 528; and Capocci v. York Catholic District School Board, 2009 HRTO 1956).

15As stated in Ouwroulis v. New Locomotion, 2009 HRTO 335, at para. 6:

…the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications…

16In this case, it is apparent that there is a substantial overlap between the facts and the human rights issues covered by this Application and those referred to in the grievance. The grievance is still outstanding, has been referred to arbitration, and the grievance process has not concluded. The fact that the parties wish to opt out of a grievance arbitration process to a cheaper or perhaps faster forum provided by the Tribunal to resolve issues that are raised in the grievance is not, in my view, a reason to depart from the Tribunal’s practice of deferring an Application pending completion of the grievance process.

17The Application is therefore deferred pending completion of the grievance process. If the applicant believes, on conclusion of the grievance process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

18The 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.

19I am not seized of this matter.