McLeod v. Vale Inco, 2011 HRTO 897

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chad McLeod

Applicant

-and-

Vale Inco Limited and Clair Parkinson

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: May 6, 2011

Citation: 2011 HRTO 897

Indexed as: McLeod v. Vale Inco

WRITTEN SUBMISSIONS

Chad McLeod, Applicant ) Self-represented

Vale Inco Limited and ) Claire Parkinson, Respondents ) Kevin Inwood, Counsel

Decision

1The applicant filed this Application on February 16, 2011, alleging discrimination in employment on the basis of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). On December 7, 2010, the applicant filed an application to the Ontario Labour Relations Board ("OLRB") alleging a violation of s. 50 of the Occupational Health and Safety Act, R.S.O. 1990 c. O.1 (the "OHSA").

2This purpose of this Interim Decision is to determine whether the Application should be deferred pending the outcome of the OHSA application. The Tribunal issued a Notice of Intent to Defer on March 18, 2011. Both the applicant and respondents filed written submissions in response to this Notice. The applicant also filed a Request for Order During Proceedings asking to amend the Application to include Daniel Seguin as a respondent to these proceedings, but it is not necessary to deal with this Request at this time.

3The 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.

4In Calabria v. DTZ Barnicke, 2008 HRTO 411, the Tribunal articulated the problem with concurrent legal proceedings and set out the factors that might be taken into account:

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. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types 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.

5In the instant case, there is significant overlap between the allegations in the Application and the allegations in the OHSA application. The applicant named the two respondents as respondents in his OHSA application, as well as Mr. Seguin, the individual he is requesting to be added as a respondent, and one other. The respondents advise that a pre-hearing was scheduled to be held on April 27, 2011 with respect to the OHSA application.

6The applicant opposes deferral on the basis that the corporate respondent "owns the timelines" with respect to hearing grievances and complaints under the collective agreement. It is not clear how this is relevant to a process before the OLRB under a statutory right. In any event, it would appear that the OHSA application will be heard prior to the Application before this Tribunal.

7The applicant also points to the fact that certain remedies are different, but this is not determinative of the issue in this case, as it would appear that the primary remedy sought by the applicant – namely, the return to his former position – is being requested in both proceedings. The fact that the applicant may be seeking additional remedies in his Application before this Tribunal is not relevant to whether his Application is heard in the normal course or deferred.

8In light of the problems caused by concurrent proceedings, the overlap between the allegations and parties, and the absence of a compelling reason to proceed with the Application to this Tribunal, the Tribunal is of the view that deferral to the OLRB process is appropriate. The Application will be deferred pending completion of the OLRB's determination of his OHSA application.

9The 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 OLRB process.

10As noted above, the applicant has made a Request to the Tribunal to add an individual respondent to his Application. This can be dealt with by the Tribunal should the Application be brought back after the conclusion of the OLRB process.

11I am not seized of this matter.