Pantaleon v. Canada Bread, 2011 HRTO 2077

Human Rights Tribunal of Ontario

B E T W E E N:

Ferdinand Pantaleon

Applicant

-and-

Canada Bread Ltd., Robert Busch, Ian Macpherson, Lewis Smith, Michell Bizar and Henry Sakowski

Respondents

interim decision

Adjudicator: Keith Brennenstuhl Date: November 16, 2011 Citation: 2011 HRTO 2077 Indexed as: Pantaleon v. Canada Bread

1This is an Application filed on June 29, 2011 under s. 34 of the Human Rights Code R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges discrimination with respect to employment because of disability. He claims that the corporate respondent has failed to accommodate his return to work.

2The applicant filed a grievance dated December 15, 2009 pursuant to the collective agreement between the Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees (the “Union”) and the corporate respondent. The grievance reads in part: “I am grieving…the ongoing failure of accommodating my medical condition…”.

3The respondents seek deferral of the Application pending the conclusion of the grievance proceedings on the basis that the issues in the grievance are the same as the issues raised before the Tribunal in this Application. The applicant opposes the deferral noting among other things that the applicant’s “human rights concerns would not be addressed in any grievance hearing.”

4The Tribunal generally defers applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In adopting 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 (Perry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

5In the present matter it is apparent that there is a substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The concerns the applicant raises do not, in my view, justify a departure from the Tribunal’s normal approach, which is to defer pending conclusion of the grievance process.

6The Application will be deferred pending the resolution of the grievance.

7Where a party wishes to proceed with an application which has been deferred, the party must make a Request for Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

8I am not seized.