Cheryl Cahoon v. Pilkington Glass of Canada Ltd., 2011 HRTO 53

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cheryl Cahoon

Applicant

-and-

Pilkington Glass of Canada Ltd.

Respondent

-and-

United Steel Workers, Local 252G

Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend

Date: January 7, 2011

Citation: 2011 HRTO 53

Indexed as: Cahoon v. Pilkington Glass

1This is an Application filed on July 8, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and encloses a copy of the grievance filed on her behalf by her union, USW, Local 252G (the “union”).

2This Interim Decision deals with the following issues: (1) whether to grant intervenor status to the union; and (2) whether the Application should be deferred pending the completion of this grievance proceeding.

INTERVENTION

3The union filed a Request to Intervene (Form 5) as an interested party. It notes that it is the bargaining agent for the applicant. It also indicates that as the bargaining agent it will be affected by any remedy ordered by the Tribunal with respect to this Application.

4The applicant and the respondent did not take advantage of their opportunity under Rule 11.4 to file a response to the Request to Intervene, and have therefore neither agreed nor objected to the proposed intervention.

5A union almost always has an interest in a human rights application involving a member, and unless there are exceptional circumstances, the Tribunal will grant the bargaining agent intervenor status when requested. In this case, I can see no reason, to deny the union’s request to intervene. The Request to Intervene is granted. The extent of the union’s participation in the Tribunal’s proceedings will be determined by the vice-chair or member assigned to determine the issue or issues as they arise.

DEFERRAL

6The respondent filed a Request for Order During Proceedings (Form 10) asking the Tribunal to defer the Application pending the completion of the grievance proceeding. It indicated that the grievance, which was filed on January 11, 2010, specifically alleged a violation of the applicant’s human rights. It also noted that the grievance had been referred to arbitration by the union on July 26, 2010, and that parties were in the process of selecting a mediator.

7The union also filed submissions in support of deferral. It indicated that the issues in the Application appear to be the same issues raised in the grievance. The applicant did not respond to the Notice, although she had indicated in her Application that she was not asking the Tribunal to defer her Application pending the outcome of the grievance.

8The 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 stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

9The 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 (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

10The 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.

11In this case, the issues raised in the Application and those referred to in the grievance appear to be the same. Moreover, the grievance was filed several months earlier than the Application and is already proceeding. In view of these facts, as well as the fact that the respondent and union support deferral, the Application will be deferred pending the completion of the grievance process.

12The 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.

13I am not seized of this matter.