Elizabeth Smart v. Pilkington Glass of Canada Ltd., 2011 HRTO 21

Human Rights Tribunal of Ontario

Between:

Elizabeth Smart Applicant

-and-

Pilkington Glass of Canada Ltd. Respondent

Interim Decision

Adjudicator: Naomi Overend Date: January 4, 2011 Citation: 2011 HRTO 21 Indexed as: Smart v. Pilkington Glass

Reasons for Decision

1This is an Application filed on September 23, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and encloses a copy of the grievance filed on her behalf by her union, USWA Local 252G (the “union”).

2This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of this grievance proceeding. The Tribunal issued a Notice of Intent to Defer (“Notice”) on November 2, 2010. The respondent responded to this Notice with submissions in favour of deferral. It indicated that the grievance, which was filed on December 7, 2009, had been referred to arbitration by the union on July 26, 2010, and that parties were in the process of selecting a mediator.

3The union also filed submissions in support of deferral. It indicated that the issues in the Application appear to be the same issues raised in the grievance. The applicant did not respond to the Notice. She had indicated earlier that it would be her preference to defer the grievance to the Application. The union indicated that the respondent refused to agree to the applicant’s request that it hold the grievance in abeyance and so the grievance is proceeding.

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.

5The 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.

6The 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.

7In this case, it is apparent that the issues raised in the Application and those referred to in the grievance are the same. Moreover, the grievance was filed several months earlier than the Application and is already proceeding. In view of these facts, as well as the fact that the respondent and union support deferral, the Application will be deferred pending the completion of the grievance process.

8The 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 Union’s Request to Intervene and the applicant’s Request for Order to amend the Application will be dealt with by the Tribunal should the Application be brought back on.

9I am not seized of this matter.