Joseph Aoun v. Kautex Corporation, 2011 HRTO 1426

Human Rights Tribunal of Ontario

Between:

Joseph Aoun Applicant

-and-

Kautex Corporation Respondent

Interim Decision

Adjudicator: Alan G. Smith Date: July 28, 2011 Citation: 2011 HRTO 1426 Indexed as: Aoun v. Kautex Corporation

Written Submissions By: Joseph Aoun, Applicant (Allen D. Blemings, Counsel)

Background

1This is an Application filed February 14, 2011, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination based on disability. The Application was sent to the respondents and to the Canadian Autoworkers Union, Local 195 (“the Union”), the bargaining agent for the applicant, as an interested party in respect of the Application.

2This interim decision deals with a Notice of Intent to Defer (“NOID”) by the Tribunal issued June 8, 2011, by which the Application would be deferred pending the outcome of an ongoing workplace grievance-arbitration process undertaken by the applicant and employer respondent.

3In the Application the applicant requested deferral and in submissions to the Tribunal received July 6, 2011, the applicant again consented to deferral.

4No response to the NOID was received from the respondent or the applicant’s bargaining agent.

Analysis

5Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.

6While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type 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, Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10 and Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.

7The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues: Blackman v. Ontario (Minister of Community Safety and Correctional Services), 2009 HRTO 970 at para. 5. 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 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.

8A review of the grievance filed by the applicant, especially with regard to the termination of his employment on February 22, 2010, reveals they it is virtually identical to the subject matter of the Application.

Order

9On consent of the applicant, I order consideration of the Application deferred pending the conclusion of the grievance arbitration process.

10I direct the parties’ attention to Rules 14.3, 14.4 and 19 which outline the procedure by which the Application may be brought back on after the conclusion of the WSIB/WSIAT proceedings. A copy of this decision will be sent to the Union (as well as the parties).

11I am not seized of this matter.