Marontate v. Hiram Walker & Sons, 2011 HRTO 33

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Denise Marontate

Applicant

-and-

Hiram Walker & Sons, Dennis Martin,

Adam Hahn, Ray Lesperance and CAW-Canada Local 2027

Respondents

interim DECISION

Adjudicator: Kathleen Martin

Date: January 5, 2011

Citation: 2011 HRTO 33

Indexed as: Marontate v. Hiram Walker & Sons

1This is an Application filed on May 20, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses whether or not the Application should be deferred because there is an outstanding grievance.

2The Application arises out of the circumstances of the applicant leaving her former employment with Hiram Walker. The applicant resigned her employment following a routine locker check which led to the discovery of two bottles of alcohol. Among other things, the applicant alleges that she has an alcohol addiction which should have been accommodated by reinstating her in her employment. The applicant states that the facts of the Application are part of a union grievance that is completed but then indicates that the union is unwilling or unable to proceed with her grievance. The grievance was not attached to the Application, although several related documents were which indicate that the union filed a policy grievance about the applicant’s “termination” in or about August 2009.

3Responses were filed by the respondents. No party formally requested deferral of the Application although based on the Responses filed it appeared there was a grievance still in progress.

4On October 27, 2010, the Tribunal issued a Case Assessment Direction seeking submissions on whether or not the Tribunal should defer consideration of the Application having regard to the grievance.

5The Tribunal has received submissions from all parties. No party requests deferral. The applicant states that the grievance is not being actively pursued by the union and hence should not be deferred. According to the respondent union and Mr. Lesperance, it is not clear that the grievance will proceed in the arbitration forum. Similarly, according to the respondent employer and Messrs. Martin and Hahn there should be no deferral, although they reserve their right to request a deferral should the matter proceed to arbitration.

6The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. Further, the Tribunal may defer an application where there is an ongoing grievance or other outstanding proceeding based on some of the facts and issues raised in an application. In each case, the Tribunal must consider whether deferral is the most fair, just and expeditious way of proceeding with the application.

7Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer the application, having regard to the status of each proceeding and the steps that have been taken to pursue them.

8In the circumstances of this Application, I am not satisfied that it would be appropriate to defer the Application. While it is apparent there is overlap between the facts and issues raised by this Application and the outstanding grievance, it is also apparent that there are some differences given that the Application is filed against the union and its representative as well as the applicant’s former employer and various representatives. Further, the grievance appears to be effectively in abeyance. Based on the submissions made, I cannot conclude that the grievance is going to arbitration.

9Having regard to the above, including the absence of any party seeking deferral, the Application will therefore continue to be processed. As all parties have agreed to mediation, the Registrar will schedule mediation in the normal course.

10There remains an outstanding Request for Order During Proceeding seeking the removal of Ray Lesperance as a party. This Request shall be addressed, if necessary, if the Application does not resolve at mediation and proceeds to hearing.

11I am not seized.