Emmanuel v. Aramark Food Services, 2011 HRTO 504

Human Rights Tribunal of Ontario

B E T W E E N:

Hermai Emmanuel

Applicant

-and-

Aramark Food Services

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: March 14, 2011

Citation: 2011 HRTO 504

Indexed as: Emmanuel v. Aramark Food Services

1This is an Application filed on December 9, 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 deals with the issue of whether the Application should be deferred pending the completion of related grievance proceedings.

2The applicant indicated in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and provided a copy of two grievances filed on her behalf by her union, the Workers United Ontario Council (the "union").

3On January 21, 2011, the Tribunal sent the parties and the union a Notice of Intent to Defer because, based on the Application, it appeared that there were ongoing grievances dealing with the subject-matter of the Application. The applicant, respondent and the union were invited to make submissions by February 20, 2011 as to why consideration of the Application should or should not be deferred. The respondent was advised that it did not yet need to file its Response to the Application.

4The respondent provided submissions and agrued that the matter should be deferred, but requested that the Tribunal offer mediation before deferring. The union responded on behalf of the applicant and also requested mediation by the Tribunal.

5The union, which made submissions on behalf of the applicant, stated that it does not dispute the respondent's legal argument in favour of the deferral. However, the applicant opposes deferral because another union, which the applicant does not support, has obtained interim bargaining rights at her workplace, and "how her grievances will be addressed remains to be seen."

6The 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 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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

7The 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.

8In this case, it appears that the facts and human rights issues covered by the Application are the same as those referred to in the grievances. The applicant's uncertainty over whether the grievance arbitrarion process will provide an appropriate resolution of her grievances is no basis to think that the normal approach should not be followed in this case. The Application will therefore be deferred pending the completion of the grievance process.

9With respect to the request for mediation by the respondent and the union, the Tribunal typically will not schedule mediation in an Application that is being deferred. However, if this matter is brought back to the Tribunal and the parties are willing, the Tribunal will schedule a mediation.

10The 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.