HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christina McKinney
Applicant
-and-
Metro Ontario Inc.
Respondent
-and-
Retail Wholesale Canada/CAW Division, Local 414
Intervenor
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: McKinney v. Metro Ontario
APPEARANCES
Christina McKinney, Applicant ) Timothy Bingham, Counsel
Metro Ontario Inc., Respondent ) Nafisah Chowdhury, Counsel )
Retail Wholesale Canada/CAW ) Jeffrey Andrew, Counsel
Division, Local 414 )
1The purpose of this Interim Decision is to determine the applicant’s Request for Reactivation. For the reasons that follow, I find that it is not appropriate to reactivate the Application. A grievance proceeding is ongoing and, in the circumstances of this case, the most fair, just and appropriate manner of proceeding is to defer consideration of the Application pending the outcome of the grievance proceeding.
HISTORY OF PROCEEDINGS
[2] The applicant filed an Application on September 14, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In an Interim Decision dated November 23, 2010, the Tribunal deferred the Application pending the determination of a grievance proceeding. The Tribunal held that the Application and the grievance overlap both in terms of the facts and the remedy sought: 2010 HRTO 2331.
[3] On October 18, 2011, the applicant filed a Request for an Order During Proceedings seeking to reactivate the Application. The applicant stated that the respondent and the union had failed to advance the grievance and that she was faced with an inappropriate request for medical documentation.
[4] In an Interim Decision dated December 6, 2012, the Tribunal denied the Request to Reactivate: 2011 HRTO 2198. However, because of an error, the Tribunal did not consider the schedule attached to the Form 10 when it rendered its December 6, 2011 Interim Decision. As a result, the Tribunal’s Interim Decision did not consider or address a number of the legal issues raised by the applicant.
[5] The Tribunal then scheduled a telephone conference to hear oral submissions concerning the Request to Reactivate. The hearing took place on May 11, 2012. I heard submissions from counsel for the parties and for the intervenor.
ANALYSIS
[6] Counsel for the applicant argues that the ongoing deferral of this matter and the deferral provisions of the Code breach section 7 of the Charter of Rights and Freedoms. He argues that deferring consideration of the Application out of course and without fully considering the stage of the grievance and the parties’ and the union’s conduct in the course of the grievance proceeding breaches the applicant’s rights under section 7 of the Charter.
[7] These arguments have been addressed in Melville v. Toronto (City), 2012 HRTO 22 (“Melville”), where the Tribunal found that section 7 of the Charter is not engaged by the Tribunal’s deferral power. The Tribunal also rejected arguments that its established approach of deferring to ongoing grievance proceedings is unjust. I adopt the Tribunal’s reasoning in Melville.
[8] At the hearing, counsel for the union advised the Tribunal that the grievance has now been referred to arbitration and that an arbitration date has been set for May 30, 2012. Counsel for the applicant objected to this information being submitted because it was not part of the materials filed with the Tribunal three weeks in advance of the hearing, in accordance with the Tribunal’s January 9, 2012 CAD. In any event, he argues that this eleventh hour scheduling of the grievance arbitration supports his argument that the union does not take reasonable steps unless pressured to do so by the Tribunal proceeding.
[9] I find that, in determining the Request to Reactivate, it is appropriate for me to consider the scheduled grievance arbitration date. Counsel for the applicant was advised of the scheduled arbitration date in advance of the hearing, albeit not within the timeframe set out in the CAD. The fact that a grievance arbitration date has been set is highly relevant to the Request to Reactivate and the applicant has not suggested that she is prejudiced by the Tribunal considering this information.
[10] The applicant further argues that a deferral is not appropriate in the particular circumstances of this case because:
a.the applicant sought to withdraw the grievance but the union (who has carriage of the grievance) refused to withdraw it; and
b. the union has unreasonably delayed advancing the grievance and has taken steps only when pressured to do so because of imminent Tribunal proceedings.
[11] In support of his position, counsel for the applicant relies on Melville (at para. 13), where the Tribunal states:
The Tribunal has refused to defer where a grievance process was not moving forward in a timely manner: see Monck v. Ford Motor Company of Canada, 2009 HRTO 861 and Gomez v. Grand River Foods, 2011 HRTO 2106. It is also, in my view, open to an applicant whose case has been deferred to file a Request for Order During Proceedings requesting reactivation on the basis that a grievance process has been unreasonably slow or to ask for reactivation on the basis that the grievor has withdrawn or attempted to withdraw the grievance entirely.
[12] I do not accept that, when the circumstances of this case are taken as a whole, it is appropriate to reactivate the Application because the applicant attempted to withdraw the grievance. While I accept that the applicant sought to withdraw her grievance at an earlier stage of the proceeding, her counsel has indicated that she is pleased that the matter has been referred to arbitration and is prepared to participate in the grievance arbitration. In my view, these circumstances no longer amount to an attempt to withdraw the grievance.
[13] Finally, I make no finding as to whether or not the union and/or the employer have failed to take reasonable steps to advance the grievance. This issue is very much in dispute and it is not necessary for me to resolve it in order to determine the Request for Reactivation. However, I do not accept that the Tribunal should essentially supervise the grievance process or that it should proceed simply because a further, parallel proceeding may pressure the parties to resolve their dispute or proceed more expeditiously with the grievance. In this regard, I adopt the Tribunal’s reasoning in Melville, supra, (at para. 12), where the Tribunal wrote:
I also do not agree with the applicant that it would be appropriate for the Tribunal to essentially supervise the grievance process by setting timelines for meeting particular steps in the process. There are many factors affecting the speed at which matters move through a grievance and arbitration process including the number of grievances outstanding in a workplace, the availability of mediators and arbitrators selected by the parties, and the parties’ resources, to name just a few. The Tribunal would have neither the knowledge in a particular case nor the expertise to do so. What the applicant asks would be directly contrary to the Supreme Court’s statement in Figliola, at para. 38, that there should be “territorial respect among neighbouring tribunals” and that human rights tribunals may not engage in “lateral adjudicative poaching” of tribunals with concurrent jurisdiction.
DECISION
[14] In all of the circumstances, given that the subject-matter of the grievance overlaps with that of the Application, that the grievance has been referred to arbitration and that the applicant is prepared to participate in the upcoming arbitration, I find that the most fair, just and expeditious manner of proceeding is to deny the Request for Reactivation.
15The Tribunal again directs the parties’ attention to Rules 14.3 and 14.4, which outline the process by which a party may seek to bring the Application back on after the grievance process has been concluded.
[16] I am not seized of this matter.
Dated at Toronto, this 31st day of May, 2012.
“signed by”
___________________________________
Michelle Flaherty
Vice-chair