Human Rights Tribunal of Ontario
Between:
Robert Niven Applicant
-and-
General Motors of Canada Respondent
Interim Decision
Adjudicator: Ena Chadha Date: July 26, 2011 Citation: 2011 HRTO 1393 Indexed as: Niven v. General Motors of Canada
1The applicant filed an Application with the Tribunal under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code") on May 2, 2011 alleging discrimination with respect to employment on the basis of disability. The applicant alleges that he was wrongfully dismissed by the respondent employer who failed to accommodate his disability and failed to appreciate that a remark he made was as a result of his depression. The Application narrative indicates that the applicant's union, CAW Local 199, filed a grievance with respect to the termination which is going to arbitration in August 2011.
2On June 6, 2011 the Tribunal issued a Notice of Intent to Defer pending the resolution of the grievance proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal's Rules of Procedure. The Tribunal invited the parties and the applicant's union, as a potential affected party, to file submissions no later than July 6, 2011 as to why consideration of the Application should or should not be deferred.
3On June 30, 2011, the applicant's union wrote to the Tribunal and indicated that the employer is not allowing any submissions regarding the human rights elements of the grievance.
4On July 6, 2011, the respondent employer wrote to the Tribunal indicating that it agrees the Application should be deferred. The respondent submits that the central issue in both the grievance and the Application is the applicant's dismissal and both the arbitrator and the Tribunal will have to address the identical issue, namely whether the employer acted properly when it terminated the applicant's employment.
5The applicant did not file submissions.
Decision
6The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). 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.
7Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.
8The submissions, and information contained in the Tribunal's file, confirm that there is an arbitration hearing scheduled to proceed in the upcoming months. The Supreme Court of Canada has affirmed that grievance arbitrators not only have 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). As such, the Tribunal will generally defer an application where there is an ongoing grievance or arbitration under a collective agreement based on the same facts and issues.
9I see no reason to depart from this approach. The interrelated nature of the grievance arbitration and the Application is acknowledged by the applicant. The arbitrator will make findings of facts regarding the events surrounding the applicant's dismissal. Given the existence of concurrent proceedings and the risk of inconsistent findings of fact and law with respect to the same issues, the Tribunal determines that the most fair, just and expeditious approach is to defer consideration of this Application in these circumstances.
10The Tribunal orders the deferral of the Application pending the conclusion of the applicant's grievance arbitration.
11Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).
12I am not seized of this matter.
Dated at Toronto, this 26th day of July, 2011.
"signed by"___________
Ena Chadha Vice-chair