HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Alvaro Gomez Applicant
-and-
Grand River Foods Respondent
INTERIM DECISION
Adjudicator: Jay Sengupta Date: June 14, 2011 Citation: 2011 HRTO 1154 Indexed as: Gomez v. Grand River Foods
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 September 24, 2010, in which he alleges discrimination in employment on the basis of disability.
2The respondents filed a Response on March 9, 2011, in which they ask the Tribunal to defer the Application because of an ongoing union grievance proceeding. The parties identify the United Food and Commercial Workers Union, Local 175 & 633 (“Union”), as an affected party.
3The applicant filed a Reply on May 11, 2011 opposing the request to defer.
4In September 2009, two grievances were filed by the Union on behalf of the applicant; the first alleging that the respondent did not respect the applicant’s medical restrictions and the second alleging an ongoing failure to accommodate the applicant and a breach of both the Workplace Safety and Insurance Act, 1997 (the “WSIA”) and the Code. The respondent argues that the subject matter of the grievances is identical to that of the Application and that the Application should be deferred pending the outcome of the grievance proceedings.
5In his Reply, the applicant does not appear to deny that there is an overlap in the subject matter of the two proceedings. Rather, he argues that the employer and the Union have not taken appropriate steps to address the grievances and that it would be unfair to defer the Application in the circumstances.
6The 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.
7I note that the grievances were filed almost two years ago. The applicant says that his understanding is that his grievances will not be proceeding. The respondent indicates that both grievances have reached the third step of the grievance process but has not provided specific information as to when the matters will proceed to be heard.
8In the circumstances, it is appropriate to seek submissions from the parties and the Union on the status of the grievances before determining the Request for Deferral.
9The Union, as an affected party, has been provided with a copy of the Application, the Response and the Reply. The Union has not filed any submissions regarding the Request to Defer and has not communicated with the Tribunal.
10Within two weeks of the date of this Interim Decision, the Union and the respondent shall advise the Tribunal and the other parties in writing of the status of the grievance proceeding and the date (if any) on which the grievances are scheduled to be heard.
11Within three weeks of the date of this Interim Decision, the applicant may respond to the information provided by Union and the respondent. The applicant’s submissions should be in writing, delivered to the Tribunal, the respondent and the Union and they should address the status of the grievance proceeding and the date (if any) on which the grievances are scheduled to be heard.
12The Registrar will deliver a copy of this Interim Decision to the Union.
13I am not seized of this matter.
Dated at Toronto this 14th day of June, 2011.
“Signed By”
____________________________________
Jay Sengupta Vice-chair