HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.C. by his next friend R.C.

Applicant

-and-

Smylie’s Independent Grocers

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: October 27, 2011

Citation: 2011 HRTO 1941

Indexed as: J.C. v. Smylie’s Independent Grocers

WRITTEN SUBMISSIONS

)

R.C., Applicant ) No submissions

)

)

Smylie’s Independent Grocers, Respondent ) Michelle Henry, Counsel

)

1R.C. filed this Application on behalf of his minor son on November 16, 2010, alleging discrimination in employment on the basis of disability, age and record of offences contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2Subsequently, R.C. also filed a duty of fair representation complaint with the Ontario Labour Relations Board (“OLRB”) on behalf of his minor son against his union, the Canadian Auto Workers, Local 414 (“CAW”). This purpose of this Interim Decision is to determine whether the Application should be deferred pending the outcome of the OLRB complaint.

3The respondent requested that the Tribunal defer the Application pending the outcome of the OLRB duty of fair representation application (“OLRB application”) in a Request for Order During Proceedings (Form 10) filed on September 13, 2010. The applicant did not file a Response to the Request, or otherwise make submissions on deferral, and the time for so doing has now passed.

4The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The 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.

5In the instant case, there is significant overlap between the allegations in the Application and the allegations in the OLRB application as the duty of fair representation allegations arise out of the same events that form the basis for the Application. The respondent notes that it is an intervenor in the OLRB application, that a possible outcome of that process is that the CAW will be required to file a grievance and refer the matter to arbitration, and that a pre-hearing before the OLRB was scheduled to take place on October 24, 2011.

6In light of the advanced stage of the OLRB proceeding, the overlap between the proceedings and the applicant’s failure to challenge the deferral request, the Tribunal is of the view that deferral to the OLRB process is appropriate. The Application will be deferred pending completion of the OLRB process.

7The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. The CAW’s Request to Intervene will be dealt with by the Tribunal should the Application be brought back on.

8I am not seized of this matter.