Cosca v. Cargill Foods, 2011 HRTO 465

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Agnes Cosca

Applicant

-and-

Cargill Foods, a Division of Cargill Limited, Frances Roth, Harith Ahmed and Mary Ann Daniels

Respondents

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: March 7, 2011

Citation: 2011 HRTO 465

Indexed as: Cosca v. Cargill Foods

WRITTEN SUBMISSIONS

Agnes Cosca, Applicant ) Self-represented

Cargill Foods, a Division of Cargill Limited, ) Frances Roth, Harith Ahmed ) Donald B. Jarvis, Counsel and Mary Ann Daniels ) Respondents )

INTRODUCTION

1This is an Application filed November 25, 2010, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code). This Interim Decision deals with the respondents’ Request for an Order During Proceedings (RFOP), filed January 28, 2011, seeking among other things, the Application be deferred pending the outcome of the ongoing workplace grievance-arbitration process.

2In its RFOP, the respondents make the following Requests:

a) Deferral of the Application pending the outcome of the Applicant’s outstanding grievances;

b) striking the portions of the Application that relate to allegations of discrimination based on “record of offences”;

c) striking those portions of the Application that relate to alleged discrimination suffered by other employees of the corporate respondent;

d) striking allegations contained in the Application which apparently refer to incidents which are outside the jurisdiction of the Tribunal due to lack of timeliness;

e) removing the personal respondents from the Application.

3The applicant’s bargaining agent, the United Food and Commercial Workers (UFCW), received notice as an affected party in this Application. It filed a Request to Intervene on January 7, 2011.

DEFERRAL

4In her Response to the RFOP the applicant opposes deferral because she is concerned about the delay in the grievance-arbitration process and the impending closure of the applicant’s work location. She also submits that the grievance-arbitration process is not dealing with her allegations that the employer has failed to accommodate her disability.

5Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.

6While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10; Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.

7The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. See Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970 at para. 5. 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 as if they were part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

8The UFCW advises that two grievances are presently being processed on behalf of the applicant:

May 29, 2011: alleging, “ unjust treatment, discrimination and intimidation” relating to the corporate respondent’s delay in allowing the applicant to return from a medical leave of absence in May 2010;

August 17, 2010: alleging that the corporate respondent has failed to provide modified duties.

9Taken together, a review of the grievances filed by the applicant reveals they are virtually identical to the subject matter of the Application.

10While the applicant may be frustrated with the length of time the grievance/arbitration process has taken, this is not a sufficient reason to proceed with the Application in all the circumstances: Law v. Organizational Solution, 2010 HRTO 1158. Moreover, the Tribunal notes that the corporate respondent is a large national company with a number of facilities operating in the Province of Ontario. Therefore the closure of the applicant’s work site should in no way relieve the corporate respondent of any legal liability.

RECORD OF OFFENCES

11In her Response to Request for Order the applicant acknowledges that this allegation was made in error and therefore consents to it being struck from the Application.

OTHER OUTSTANDING ISSUES

12The Application deals with the time period post November 2009. The only exception is the statement by the applicant that, “These incidents that have been going on between me and the supervisors and other management staffs are dating back to years 2008 to present. I tried for years/months to calm down and be civil with them…”.

13The Application also contains allegations of four other employees experienced discrimination contrary to the Code. However, the applicant states with respect to those allegations that, “I am telling all these so Human Rights Tribunal will have an idea what this company is really all about, how employees are being treated on a daily basis”.

14In her Response to Request for Order the applicant appears to advise that she that she intends to use the allegations with regard to other employees and allegations which occurred prior to November 2009 only to, “…raise the issue of a similar fact evidence or pattern of conduct on the part of the respondents”. Therefore it is unnecessary to deal with the respondents’ Request to dismiss those allegations.

15The applicant opposes the removal of the personal respondents. This issue can be dealt with as a preliminary matter when and if the Application is scheduled for a hearing.

ORDER

16In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance-arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

17On consent, the allegation of discrimination based on “Record of Offences” is struck from the Application.

18In the circumstances it is unnecessary to deal with the respondents’ other Requests.

19The UFCW’s Request to Intervene may also be determined if and when the Application is reactivated.

20I am not seized of this matter.