Ut Chau v. Workright Inc., 2011 HRTO 598

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ut Chau

Applicant

-and-

Workright Inc., Cargill Value Added Meat Canada, Randy Walker, Kim Avey and Diana Smith

Respondents

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: March 25, 2011

Citation: 2011 HRTO 598

Indexed as: Chau v. Workright

WRITTEN SUBMISSIONS

Ut Chau, Applicant ) Peter Mancini, Representative

Workright Inc., Cargill Value Added ) Meat Canada, Randy Walker, ) Kim Avey and Diana Smith ) Frank Angeletti, Counsel Respondents )

INTRODUCTION

1This is an Application filed October 6, 2010, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The respondents filed a Response on January 7, 2011.

2This Interim Decision deals with the respondents’ Request to Defer the Application pending the outcome of the ongoing workplace grievance-arbitration process. The grievance was filed by the applicant’s bargaining agent on August 2, 2010. The respondents state that, “the grievance procedure is currently ongoing and both Cargill and the Union are actively seeking to resolve the issue”.

3In a Reply filed with the Tribunal on March 9, 2011, the applicant opposes deferral because the grievance only deals with the issue of accommodation of the applicant’s disability and does not deal with the Application’s allegations of discrimination due to her age, race and place of origin.

4Deferral 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.

5While 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.

DECISION

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

7The Tribunal finds it appropriate to defer this Application pending the completion of the grievance process. The key issue at the heart of that grievance, the allegation that the respondent employer failed to accommodate the applicant’s disability, is also the key issue covered by this Application. There may be issues raised by the Application that go beyond those that will be litigated before the arbitrator. However, given the considerable factual overlap between the two proceedings, the potential for the arbitration to determine some of the issues in this Application, and the stage of that arbitration process, the rational and orderly litigation of the various issues between this applicant and his employer favour deferral. See O’Brien v. Burlington (City), 2009 HRTO 1818.

8In 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.

9I am not seized of this matter.