Mark Gelsing v. Sobeys Capital Incorporated o/a Sobeys Milton, 2011 HRTO 179

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Gelsing

Applicant

-and-

Sobeys Capital Incorporated o/a Sobeys Milton

Respondent

INTERIM DECISION

Adjudicator: Sherry Liang

Date: January 25, 2011

Citation: 2011 HRTO 179

Indexed as: Gelsing v. Sobeys Capital

1This is an Application filed on March 25, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2The Application alleges discrimination on the ground of disability and specifically, that the applicant’s employer has refused to allow him to return to work as a result of a disability. The applicant is represented in his employment relations by the United Food and Commercial Workers Union, Locals 175 & 633 (the Union). He indicates that the facts of the Application are currently part of another proceeding, and has provided the Tribunal with a copy of a grievance filed by the Union dated December 7, 2009 alleging a refusal to accommodate.

3On the basis of the information in the Application, the Tribunal issued a Notice of Intent to Defer inviting the parties as well as the Union to provide submissions on whether it is appropriate to defer consideration of the Application pending the resolution of the grievance. The applicant and the respondent have provided submissions. The Union has not.

4The applicant states that he does not wish his Application to be deferred. He states that it has been a year since he filed his grievance and there is no arbitration date in sight. He states that the Step 3 meeting (the last step in the grievance process) was held on July 29, 2010. Further, he expresses concern with the positions taken or advice given by one of his union representatives. He states that if his grievance goes to arbitration it will be hard for him to present a fair and convincing argument to an arbitrator when his representative seems unwilling to fight for him and appears already to be convinced that he will lose.

5The respondent submits that it is appropriate to defer the Application. The alleged human rights issues raised by the Application are concurrently being dealt with as part of a grievance/arbitration process. The respondent submits that the grievance meetings have concluded and it is waiting for the matter to be referred to arbitration. The respondent provides a copy of an agreement between the Union and the respondent dated August 5, 2010 in which the parties agree to extend the time limits for referring the applicant’s grievance to arbitration, indefinitely. In response to the applicant’s submissions, the respondent states that it is not appropriate to refuse deferral simply because the arbitration process is taking longer than anticipated. Further, while the applicant may be discontent with the representation afforded to him by the Union, the grievance remains active and is pending referral to arbitration.

6Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that the 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. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

7The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

8The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. 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 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).

9The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

10In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. This is a factor favouring deferral of the Application. However, there is no indication that either the Union or the respondent has taken any steps to refer the grievance to arbitration, despite the fact that the grievance process was exhausted in July 2010. The Union has not responded to the Tribunal’s Notice by confirming that it intends to refer the grievance to arbitration. There is therefore no indication that the human rights issues raised by this Application will be determined by an arbitrator. In such circumstances, the Tribunal does not find deferral to be the most fair and just manner of dealing with the Application.

11In the circumstances, the Application will proceed. The respondent will have 30 days from the date of this Interim Decision to file its Response.

12I am not seized of this matter.