Morrison v. Acco Brands Canada Inc., 2011 HRTO 1177

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Simone Morrison Applicant

-and-

Acco Brands Canada Inc. Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: June 17, 2011 Citation: 2011 HRTO 1177 Indexed as: Morrison v. Acco Brands Canada Inc.

1This Application was filed on April 14, 2011, alleging discrimination in employment on the basis of disability and sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant discusses in this Application that the facts of the Application are also part of a union grievance proceeding that was commenced on or around August 30, 2010, by her union, the Communications, Energy and Paperworkers of Canada, Local 320 (“CEP”).

2This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of this grievance proceeding. The Tribunal issued a Notice of Intent to Defer (“Notice”) on May 25, 2011. The respondent responded to this Notice with submissions in favour of deferral. The applicant opposes deferral, and the CEP has taken no position.

3The 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.

4The 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).

5The 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.

6In this case, it is apparent that the issues raised in the Application and those referred to in the grievance are the same. Moreover, the grievance was filed several months earlier than the Application and is already proceeding. It is currently scheduled to go to arbitration, albeit not until April 3, 2012. According to the applicant, the CEP has been active in supporting the applicant’s request to the company for accommodation of the symptoms of her pregnancy.

7The applicant is concerned that, if successful, the grievance will only result in her receiving back pay and not compensation for the emotional impact of the alleged discrimination on her. However, there is nothing on the face of the grievance form that restricts the nature of compensation sought.

8In view of these facts, the Application will be deferred pending the completion of the grievance process.

9The 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 Union’s Request to Intervene and the applicant’s Request for Order to amend the Application will be dealt with by the Tribunal should the Application be brought back on.

10I am not seized of this matter.