Said Yonis v. Newalta Corporation, 2011 HRTO 1352

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Said Yonis

Applicant

-and-

Newalta Corporation

Respondent

-and-

United Steelworkers, Local 3950

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: July 18, 2011

Citation: 2011 HRTO 1352

Indexed as: Yonis v. Newalta Corporation

1The applicant filed an Application on February 3, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in respect to employment because of race, colour, disability and age. The Application indicated that the applicant is a member of a union, the United Steelworkers, Local 3950, and that some facts alleged in the Application were part of a grievance.

2On June 2, 2011, the United Steelworkers (“union”) filed a Request to Intervene. The union seeks to intervene in this Application because it is the exclusive bargaining agent for the applicant and has been involved in representing the applicant with respect to his workplace concerns. The union indicates that it has relevant information about the facts as alleged in the Application and that it filed three grievances, two of which are active, on behalf of the applicant with respect to the allegations made in the Application. The union provided copies of the applicant’s grievances dated May 26, 2010, February 1, 2011 and February 2, 2011.

3On June 3, 2011, the respondent filed its Response and requested the Tribunal to defer the Application pending the completion of the grievance process.

4On June 6, 2011, the Tribunal issued a letter directing the applicant to file submissions with respect to the whether the Application should be deferred pending the conclusion of the grievance processes.

5On June 13, 2011, the applicant wrote to the Tribunal and indicated that he is opposed to deferring the Application because he believes that the union is cooperating with the employer.

6Neither party filed submissions regarding the union’s Request to intervene.

REQUEST TO INTEVENE

7As the Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

8Based on the material submitted by the union, I am satisfied that the union has an interest in the outcome of the Application and relevant information regarding the facts alleged in the Application. As such, in accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by a union, the union’s Request to Intervene is granted.

DEFERRAL

9The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same subject matter of the application. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

10Based on my review of the materials, it appears that the Application and the three grievances overlap because the allegations raised in the Application are the same as the concerns noted in the grievances. The grievances allege harassment, unequal treatment and denial of benefits with respect to race and disability. As such, I find that there is significant factual and legal overlap between the grievances and the subject matter of the Application. The documentary information provided by the union confirms that two grievances are ongoing and being advanced by the union. The respondent employer indicates that it understands that the union will proceed with arbitration with the two active grievances.

11In these circumstances, I find that deferral is appropriate. I appreciate that the applicant may be dissatisfied with the union’s support; however, there is no indication that the human rights issues will not be resolved or dealt with through the grievance processes. 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).

CONCLUSION

12The Tribunal orders that this Application be deferred pending the conclusion of the grievance arbitration. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

13Given the Tribunal’s decision to defer, the extent and the nature of the Union’s participation in this proceeding can be determined when and if the matter is brought back before the Tribunal.

14I am not seized.