Ermine Shaw v. Faurecia Automotive Seating Canada Ltd., 2011 HRTO 20

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ermine Shaw

Applicant

-and-

Faurecia Automotive Seating Canada Ltd.

Respondent

INTERIM DECISION

Adjudicator: Judith Keene

Date: January 4, 2011

Citation: 2011 HRTO 20

Indexed as: Shaw v. Faurecia Automotive Seating Canada

1The applicant filed an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"), alleging discrimination with respect to employment because of disability and age, on June 8, 2010. The Application was sent to the respondents and to the United Steelworkers, Local 8694, ("the Union") the bargaining agent for the applicant, as an interested party in respect of the Application. The Union has made a request to intervene.

2In its Response, the respondent has requested deferral, because there is an outstanding matter before the Ontario Labour Relations Board (OLRB). However, the respondent also notes that the grievances filed by the applicant against it, which appear to have made some reference to the subject-matter of the Application, have been withdrawn by the Union.

3The Applicant acknowledged an outstanding matter before the OLRB in her Application. However, the matter is a Duty of Fair Representation application against the Union. The applicant opposes deferral. The applicant states that the factual and legal issues in the OLRB proceedings are distinct from this Application.

4The 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 (Code s.45; Rule 14.1).

5The initial consideration for the Tribunal in deciding whether or not to defer to another proceeding is whether the same facts and issues are being raised before another decision-maker with the authority to deal with issues arising under the Code. Applications before the Tribunal may raise facts or issues which overlap with those in other concurrent proceedings, but in which human rights issues are not clearly engaged. In those cases, in exercising its discretion to defer, the Tribunal will consider factors such as the subject matter of the other proceeding, its nature, the type of remedies available, the status of the other proceeding and steps that have been taken to pursue it. See Howard v. Halton Condominium Corporation No. 59, 2009 HRTO 966, at paras. 13-14

6In my view, this is not a case in which deferral is appropriate. Although there may be an overlap in some of the facts relevant to each, this Application and the proceedings before the OLRB are distinct and involve different legal frameworks and different parties. It cannot be said the Application involves parties that are involved in ongoing litigation addressing substantially the same issues. In these circumstances, the request to defer is denied.

7Both parties are represented. Both parties have indicated willingness to attempt mediation. This matter will be scheduled for mediation in the normal course.

8I am not seized of this matter.