Vetrenko v. Securitas Canada Limited, 2012 HRTO 1111

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alexander Vetrenko

Applicant

-and-

Securitas Canada Limited, Robert De Haan, Dale Wilson and John Cole

Respondents

-and-

United Steelworkers, Local 9597

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: June 6, 2012

Citation: 2012 HRTO 1111

Indexed as: Vetrenko v. Securitas Canada Limited

WRITTEN SUBMISSIONS

Alexander Vetrenko, Applicant Self-represented

Securitas Canada Limited, Robert De Haan, Dale Wilson and John Cole, Respondents Daniel R. McDonald, Counsel

United Steelworkers, Local 9597, Intervenor Shaheen Hirani, Counsel

1This Application was filed on January 20, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to employment on the basis of ethnic origin, disability and creed.

2The applicant alleges that he was subjected to poisoned work environment and discriminatorily dismissed because of his Russian background, his religion and perceived mental disability. In response to question 14 of Form 1 of the Application, the applicant noted that a grievance is in progress with respect to the facts alleged in the Application. The applicant provided a copy of a termination grievance dated January 12, 2012.

3On February 13, 2012, the Tribunal issued a Notice of Intent to Defer (“Notice”). The Notice indicated that, pursuant to Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may defer an Application pending the resolution of another legal proceeding. The Tribunal invited the parties, and the applicant’s union, United Steelworkers, Local 9597 (“union”), as an affected party, to file written submissions within 30 days of the date of the Notice as to why consideration of the Application should or should not be deferred.

4On March 12, 2012, the applicant filed submissions opposing deferral. The applicant submits the Application should proceed because he believes his union has not represented him fairly and is acting in bad faith. The applicant further submits that since the grievance was launched by the union and not by him, it was done so falsely in his name.

5On March 13 and 14, 2012, the respondents filed submissions supporting deferral. The respondents submit that the matters raised in the Application should be determined at arbitration because the grievance and Application are based on the same essential facts.

6On April 4, 2012, the applicant’s union filed a request to intervene. With respect to the issue of deferral, the union indicates that it supports deferral as there is significant overlap between the grievance and the subject matter of the Application. The union indicates that on March 13, 2012 it served notice to the respondent employer that it would be proceeding to mediation/arbitration on the applicant’s grievance.

Request to Intervene

7As the Tribunal stated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

8Based on the information provided by the parties and the submissions of the Union, I am satisfied that the union has an interest in the outcome of the Application. As such, and in accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by the union, the union’s request to intervene is granted.

Deferral

9The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). 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.

10Some factors that have been identified as 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

11The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is on-going grievance under a collective agreement based on the same facts and issues as raised in the Application. In so doing, the Tribunal has relied on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, wherein the Supreme Court of Canada confirmed 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.

12I see no reason to depart from the Tribunal’s general approach and find that deferral is warranted in the present circumstances. The respondents and the union agree that allegations in the grievance and the Application significantly overlap and on that basis the Application should be deferred. The applicant’s grievance was commenced prior to this Application and appears to be on-going. The applicant does not contest that his grievance is related to the facts and issues raised in the Application, but rather disputes the quality of the representation being provided by the union. The union’s submissions indicate that the applicant’s grievance is proceeding to mediation/arbitration.

13With respect to the applicant’s claim in his submissions that the grievance was filed falsely in his name, I note that the applicant’s narrative and various points in Form 1 of his Application confirm his knowledge that a grievance was proceeding, albeit he was dissatisfied with the union’s treatment. I appreciate that the applicant may be frustrated with the scope of the union’s support; however, there is neither evidence that the grievance was falsely launched nor any indication that the human rights issues will not be resolved or dealt with through the grievance processes.

14As highlighted in various Tribunal decisions, there are compelling reasons why it may be unfair for parties to be required to simultaneously present their cases in multiple fora, particularly when the matters overlap; when the same facts or issues are in dispute there is a potential for inconsistent findings, and it is generally preferable for one proceeding to be completed before the other starts. Further, as recently stated in McFarlane v. Farraway, 2012 HRTO 657, “[w]here 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.”

15As such, I determine that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the applicant’s grievance and the grievance proceedings.

16Accordingly, I conclude that there is significant duplication in the subject matter of the Application and the outstanding grievance and, as such, it appropriate to defer the Application until the conclusion of the grievance process.

17Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

18I am not seized of this matter.