HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alvaro Gomez

Applicant

-and-

Grand River Foods

Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: November 22, 2011

Citation: 2011 HRTO 2106

Indexed as: Gomez v. Grand River Foods

WRITTEN SUBMISSIONS BY

Alvaro Gomez, Applicant ) On his own Behalf

Grand River Foods, Respondent ) Dan Shields, Counsel

United Food and Commercial Workers Canada, )

Locals 175 and 633 ) Marcia Barry, Counsel

[1] The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on September 24, 2010, in which he alleged discrimination in employment on the basis of disability.

[2] The respondents filed a Response on March 9, 2011, in which it asked the Tribunal to defer the Application because of an ongoing union grievance proceeding. The parties identify the United Food and Commercial Workers Union, Local 175 & 633 (“Union”), as an affected party.

[3] The applicant filed a Reply on May 11, 2011 opposing the request to defer.

[4] In September 2009, two grievances were filed by the Union on behalf of the applicant: the first alleging that the respondent did not respect the applicant’s medical restrictions and the second alleging an ongoing failure to accommodate the applicant and a breach of both the Workplace Safety and Insurance Act, 1997 (the “WSIA”) and the Code.

[5] The respondent argued that the subject matter of the grievances is identical to that of the Application and that the Application should be deferred pending the outcome of the grievance proceedings.

[6] In his Reply, the applicant did not appear to deny that there is an overlap in the subject matter of the two proceedings. Rather, he argued that the employer and the Union had not taken appropriate steps to address the grievances and that it would be unfair to defer the Application in the circumstances.

[7] The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also 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.

[8] In an earlier Interim Decision, the Tribunal sought submissions from the parties and the union on the status of the grievances. Those submissions have been received.

[9] The respondent has confirmed that both grievances have proceeded to the third step of the grievance process and have been denied by the respondent. The respondent indicates that despite not having referred the grievances to arbitration, the union has not withdrawn said grievances and they remain outstanding.

[10] The union, for its part, indicates that the grievances have been “held in abeyance since the applicant was referred to the WSIB Labour Market Re-Entry Program”. The union confirms that the applicant has not asked the union to pursue the grievances and the union has not referred the matters to arbitration.

[11] The applicant states that he was “informed by the member of the union that the two grievances would not proceed because the WSIB is handling (his) case”.

[12] In light of confirmation from both parties and the union that the grievances have not been referred to arbitration despite the passage of time, I find it is not appropriate to defer this Application. In the particular circumstances of this case, the most fair, just and expeditious outcome is to proceed with this Application.

[13] I am not seized of this matter.

Dated at Toronto, this 22nd day of November, 2011

”signed by”______________

Jay Sengupta

Vice-chair