Chau v. Workright Inc., 2011 HRTO 1561

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ut Chau Applicant

-and-

Workright Inc., Cargill Value Added Meat Canada, Randy Walker, Kim Ivey and Diana Smith Respondents

INTERIM DECISION

Adjudicator: Alan G. Smith Date: August 19, 2011 Citation: 2011 HRTO 1561 Indexed as: Chau v. Workright Inc.

WRITTEN SUBMISSIONS:

Ut Chau, Applicant | Peter Mancini, Representative Workright Inc., Cargill Value Added Meat Canada, Randy Walker, Kim Ivey and Diana Smith, Respondents | Frank Angeletti, Counsel

BACKGROUND

1This is an Application filed October 6, 2010, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondents filed a Response on January 7, 2011, and requested deferral of the Application pending the outcome of the ongoing workplace grievance-arbitration process, which had been initiated by the applicant’s union, the United Food and Commercial Workers Canada (the “Union”). The grievance was filed by the applicant’s bargaining agent on August 2, 2010. The respondents stated, “the grievance procedure is currently ongoing and both Cargill and the Union are actively seeking to resolve the issue.”

2In a Reply filed with the Tribunal on March 9, 2011, the applicant opposed deferral because the grievance only deals with the issue of accommodation of the applicant’s disability and did not deal with the Application’s allegations of discrimination due to her age, race and place of origin. Notably, the Reply made no suggestion that the grievance arbitration procedure had concluded.

3On March 25, 2011, the Tribunal issued an Interim Decision (the “March 25 Decision”) in which I found that it was appropriate to defer the Application pending the conclusion of the grievance arbitration process.

4On April 20, 2011, the Applicant filed with the Tribunal a Request for an Order During Proceedings seeking to “reactivate the deferred Application dated March 25, 2011.” The Applicant attached a letter dated December 30, 2010, from the corporate respondent to the Union. The letter confirms that the applicant’s grievance was denied at a “3^rd step grievance meeting” held on October 26, 2010. I note that this letter predates the March 25 Decision and does not, in any way, address the argument that the grievance-arbitration process has been concluded.

5A Case Assessment Direction (“CAD”) was sent by the Tribunal to the respondent and the union on July 21, 2011, directing them to advise the Tribunal of the status of the applicant’s grievance and their position on whether the Application should be reactivated.

6No response has been received from the applicant’s union.

7August 11, 2011, in response to the CAD, the employer respondent made the following submission regarding re-activation:

It is the position of the Respondents that the grievance process continues to remain active and viable. It is the Respondents’ understanding that arrangements are being made for advancing the matter to arbitration however, the Union has not been able to receive any direction from the Applicant and that has delayed the process for arranging an arbitration date.

The Respondents continue to submit that the application should not be re-activated at this time.

ANALYSIS

8Tribunal Rule 14.4 provides:

Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any [emphasis added].

9The March 25 Decision deferring the Application found (at paragraph 8):

In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration process…. [emphasis added]

10On the evidence before me, I find that the grievance-arbitration procedure is continuing. It may be that the applicant is dissatisfied by the pace of the grievance-arbitration procedure, however, that is not a sufficient reason to re-active the Tribunal process. See Parris v. Toronto (City), 2011 HRTO 686 and Groves v. Ontario (Community Safety and Correctional Services), 2011 HRTO 1245.

ORDER

11The Request to re-activate the Application is denied.

12I am not seized.