Ryan Willison v. Flex-N-Gate Seeburn, a Division of Ventra Group Co., Ruth Griepsma and Gord Neil, 2011 HRTO 1343

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ryan Willison Applicant

-and-

Flex-N-Gate Seeburn, a Division of Ventra Group Co., Ruth Griepsma and Gord Neil Respondents

-and-

United Steel, Paper-and-Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steelworkers) Intervener

INTERIM DECISION

Adjudicator: Kathleen Martin Date: July 15, 2011 Citation: 2011 HRTO 1343 Indexed as: Willison v. Flex-N-Gate Seeburn

1This is an Application filed on September 3, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c, H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The background to this Application is set out in an earlier Interim Decision of the Tribunal: 2011 HRTO 250. The Application referred to a grievance dated September 28, 2009. The grievance alleges a violation of the collective agreement and “human rights” regarding the failure to accommodate the applicant and the failure to recall him to employment. These appear to be the central issues in the Application. The applicant in the Application did not request its deferral.

3A subsequent Response was filed by the respondents on December 13, 2010 and a Request to Intervene was filed by the union on December 15, 2010. Both referred to a grievance, but no details were provided on the status of the same beyond the respondents indicating that it was “not yet resolved”.

4In the earlier Interim Decision, the Tribunal granted the union’s request to intervene, denied the respondents’ request to dismiss the Application on the basis of s. 45.1 of the Code and sought submissions on whether or not the Application should be deferred to the grievance process. Submissions were received. In a subsequent Case Assessment Direction, dated May 3, 2011, the Tribunal sought additional submissions on the status of the grievance and the respondents’ new request that the Application be deferred until the appeal of a related claim is determined by the Workplace Safety and Insurance Board (“WSIB”) Appeals Branch and the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).

5Additional submissions were filed by the parties and the union.

6The applicant opposes deferral. The reason for his opposition is the delay in processing the grievance, although he acknowledges in his recent submissions that the grievance process has started.

7The respondents and union support deferral citing the overlap in the subject matter of the two proceedings. Their submissions clarify that the grievance has been referred to arbitration and an arbitrator has been agreed to, although the arbitration has not yet been scheduled.

8The 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.

9The 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).

10The 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.

11In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. While the applicant opposes deferral because of the length of time it has taken to process the grievance, he does not suggest that it is not proceeding. Further, the information provided indicates that the grievance has been referred to arbitration and an arbitrator agreed to. Based on the foregoing, there are no circumstances that would cause the Tribunal to depart from its normal approach. The Application will therefore 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 the Application may be brought back on after the conclusion of the grievance process.

13The respondents also requested that the Application be deferred pending the applicant’s appeal of a WSIB decision. I find it unnecessary to address this request at this time. The respondent may renew the request if and when this Application is brought back on.

14I am not seized of this matter.