Courtney Kencher v. No Frills Grocery Store, 2011 HRTO 434

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Courtney Kencher

Applicant

• and-

No Frills Grocery Store

Respondent

• and-

United Food and Commercial Workers Canada, Local 1000A

Intervenor

INTERIM decision

Adjudicator: Ena Chadha

Date: March 1, 2011

Citation: 2011 HRTO 434

Indexed as: Kencher v. No Frills Grocery Store

1The applicant filed an Application on August 25, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment on the basis of disability.

2The Application was delivered to the respondent and the applicant’s union, United Food and Commercial Workers Canada, Local 1000A, as a named affected party (“the union”).

3On December 3, 2010, the respondent filed its Response in which it requests the Tribunal defer the Application pending the resolution of the applicant’s grievance. The respondent submits that the applicant’s union commenced a grievance on November 10, 2010 regarding the applicant’s dismissal which is the same subject matter of the present Application. The respondent submits that the grievance is in the process of being scheduled for arbitration.

4On December 3, 2010, the applicant’s union filed a Request to Intervene. The union submits that it seeks to intervene in this Application because, as the applicant’s bargaining agent, the union has an interest in the Application. The union further submits that it is currently representing the applicant with respect to the grievance of her employment termination. The union requests that it be permitted to participate in any mediation and make oral submissions if the Application proceeds to a hearing.

5On December 15, 2010, the Tribunal issued a Notice of Intent to Defer to the applicant, copied to her union, indicating that the Tribunal was considering deferring the Application pending the resolution of another legal proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal invited the applicant to file submissions no later than December 31, 2010 as to why consideration of the Application should or should not be deferred.

6On December 20, 2010, the applicant requested an extension of time to file submissions with respect to the issue of deferral. The Tribunal granted the applicant an extension until January 28, 2011. However, the applicant has not filed submissions with respect to the issue of deferral nor with respect to the union’s Request to Intervene and the time for doing so has elapsed.

7The respondent has also not responded to the union’s Request to Intervene.

REQUEST TO INTERVENE

8In accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by the union, the union’s request to intervene is granted. The style of cause is amended to add the union as an intervenor.

REQUEST TO DEFER

9The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

10In its Response, the respondent submits that the applicant’s grievance arises out of the same facts that are alleged in the current Application, namely the termination of the applicant’s employment. The respondent indicates, and the union has confirmed, that a grievance regarding this matter is underway.

11Based on the materials filed with the Tribunal, it appears that there is an outstanding grievance regarding the same allegations which are made in the Application. Based on the Application narrative, I conclude that there is overlap between the grievance and the factual and legal subject matter of the Application.

12In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the applicant’s grievance. Given the decision to defer the Application, the extent and the nature of the union’s participation in the proceeding can be determined when and if the matter is brought back before the Tribunal.

13Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

14I am not seized of this matter.