Tulloch v. Essar Steel Algoma, 2010 HRTO 9

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Spencer Tulloch

Applicant

-and-

Essar Steel Algoma Inc., United Steelworkers Local 2251, Donald Kennedy and Roman Wyslocky

Respondents

interiM DECISION

Adjudicator: Alison Renton

Date: January 5, 2010

Citation: 2010 HRTO 9

Indexed as: Tulloch v. Essar Steel Algoma

1This is an Application filed on July 3, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant is represented by a union, United Steelworkers Local 2251 (the “union”). The applicant’s employer is Essar Steel Algoma Inc. (the “corporate respondent”) and the personal respondents are part of the corporate respondent’s management team. This Interim Decision addresses whether or not the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant alleges discrimination in employment on the basis of disability. He alleges that he is able to work, but the corporate respondent has failed to accommodate him. The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, but does not enclose a copy of the grievance. He also indicates that the facts of the Application are part of a joint steering committee of union and management, but does not provide any information about that committee.

3The corporate and personal respondents filed Responses. The respondents make a request for early dismissal of the Application on the basis that another proceeding has in whole or in part appropriately dealt with the substance of the Application. The other proceeding is identified as a joint worker re-entry team comprised of representatives of the corporate respondent and the union. It appears from the Responses that the joint worker re-entry team is the same entity as the joint steering committee described in paragraph 1 above and that the applicant’s accommodation has been considered and addressed to some extent by this joint team.

4The applicant’s union has filed a Response. Among other things, the union requests that the Tribunal defer the Application because of a union grievance (which appears to have been filed after the Application) and the joint worker re-entry team process referenced by the other respondents. The union attaches a copy of the grievance, which reads, in part, that “…Management has failed to accommodate [the applicant]”. The grievance alleges a violation of the collective agreement between the corporate respondent and the union as well as the Code.

5Despite the Tribunal bringing to the applicant’s attention the respondents’ requests to defer the Application, the applicant did not file a Reply to the Responses filed and the deadline for doing so has now passed.

6The 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 in 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.

7The 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).

8The 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.

9In this case, I find it appropriate to defer the Application. Based on the material filed, it is apparent that the issue of the applicant’s accommodation has already been considered by the joint worker re-entry team. In addition, a grievance is now in process and it is apparent that there is a substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. If the applicant believes, on conclusion of the grievance process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

10The Application will therefore be deferred pending the completion of the grievance process.

11The 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. The respondents’ request for early dismissal of the Application on the basis that another proceeding (the joint worker re-entry team) has in whole or in part appropriately dealt with the substance of the Application may be dealt with by the Tribunal, upon request by one of the parties, if the Application is brought back on after the conclusion of the grievance process.

12I am not seized of this matter.