Scharf v. Viscount Glass & Aluminum, 2011 HRTO 1761

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason Scharf

Applicant

-and-

Viscount Glass & Aluminum, a division of 727849 Ontario Ltd.,

and John Kaczmerek

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: September 26, 2011

Citation: 2011 HRTO 1761

Indexed as: Scharf v. Viscount Glass and Aluminum

1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 2, 2011. It alleges discrimination in employment on the basis of disability. It also alleges reprisal or threat of reprisal. In essence, the applicant states that the respondents failed to accommodate his disability, disciplined him improperly, and subjected him to heightened scrutiny.

2The respondents have filed a Response denying the allegations of discrimination. In their Response, they request the deferral of the Application pending the determination of a grievance proceeding. They also seek an early dismissal of the Application on the basis that another proceeding has dealt appropriately with the subject matter of the Application. Finally, they argue that the Application should be dismissed because it is untimely.

3The applicant has filed a Reply in which he objects to the dismissal or deferral of the Application.

4For the reasons that follow, the respondents’ requests are denied.

OVERVIEW

5The applicant was actively employed by the corporate respondent until May, 2010. At the materials times, he was a member of the International Union of Painters and Allied Trades, Local 200 (“Union”).

6On June 16, 2010, the Union filed a grievance on behalf of the applicant, alleging that he was improperly disciplined on or about April 22, 2010. The grievance alleges that this disciplinary measure is part of an ongoing harassment campaign against the applicant following his return to work on modified duties. The grievance also makes reference to an incident on June 9, 2010, when the personal respondent attended at the applicant’s home. This June 9, 2010 event is alleged to be a further incident of harassment.

7In a letter dated June 21, 2010, the employer denied the grievance. It held that the grievance was untimely under the collective agreement. The employer did not revisit its decision to impose discipline and it refused to grant the remedies sought in the grievance.

8The applicant states that the Union has decided not to refer the grievance to arbitration. The respondents acknowledge that the matter has not yet been referred to arbitration, but they state that the grievance remains outstanding “pending referral to arbitration” and that it has never formally been withdrawn.

ANALYSIS

Request to defer

9The 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). The Tribunal will generally defer an application where there is an ongoing grievance based on the same facts and issues.

10In this case, I am satisfied that the grievance raises at least some of the same facts and issues as the Application. However, in this case, the grievance proceeding cannot be said to be ongoing. The employer denied the grievance over one year ago. Although the grievance may not have been formally withdrawn, no steps have been taken to pursue it since June 2010.

11In the circumstances, I find there is no ongoing grievance proceeding. The request to defer is denied.

Request to Dismiss

12Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.

13This Tribunal has held that the requirements of section 45.1 are not necessarily met where a grievance has been withdrawn: see Paterno v. Salvation Army, Centre of Hope, 2010 HRTO 10; Shannon v. Renfrew (County), 2010 HRTO 930 ; and Parliament v. Metro Ontario, 2010 HRTO 1609.

14The onus falls on the party seeking to rely upon section 45.1 to show that the other proceeding appropriately dealt with the subject matter of the Application. In this case, while the grievance has not been formally withdrawn, as noted above, the Union has taken no steps to pursue it for over one year. There is no information before me suggesting that the parties reached a settlement, that the applicant had any role to play in the Union’s decision-making, or that the applicant understood and agreed that his concerns had been appropriately dealt with through the grievance process.

15In the circumstances, I cannot conclude that another proceeding has appropriately dealt with the subject-matter of the Application. The request to dismiss on this basis is denied.

Timeliness

16Section 34 of the Code states:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

17Pursuant to section 34, the Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

18The respondents state that the applicant’s last day of active employment was May 14, 2010. It argues that the Application, which was filed more than a year later (on June 2, 2011), is untimely.

19The applicant argues that a confrontation with the personal respondent on June 9, 2010 constitutes a further act of discrimination and harassment. More specifically, he states that the respondents did not accept that he had a disability and that, as a result, the personal respondent allegedly spied on the applicant at his home.

20The respondents state that the June 9, 2010 incident does not constitute discrimination within the meaning of the Code. They argue that this allegation does not bring the Application within the limitation period.

21The delay issue in this case raises questions of fact and law that are closely related to those the Tribunal would need to consider in order to determine the merits of the Application. In my view, it would be difficult for the Tribunal to determine the implication of the June 9, 2010 incident on the timeliness of the Application on a standalone basis and without the context of the other allegations.

22In these circumstances, it is not appropriate to determine the delay issue on a preliminary basis.

23The request to dismiss on the basis of delay is denied. This is without prejudice to the respondents’ right to raise the issue of delay at the hearing of this matter.

SUMMARY

24For the reasons set out above, the respondents’ requests to dismiss the Application are denied. The respondents’ request to defer the Application is also denied.

25I am not seized.