Zurkowski v. Cargill Limited Canada, 2012 HRTO 1168

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ryszard Zurkowski

Applicant

-and-

Cargill Limited Canada

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: June 14, 2012

Citation: 2012 HRTO 1168

Indexed as: Zurkowski v. Cargill Limited Canada

WRITTEN SUBMISSIONS

Cargill Limited Canada, Respondent

Daniel L. Leone, Counsel

United Food & Commercial Workers Canada, Local 175 & 633, Affected Party

Rebecca Lee, Counsel

1This Application was filed on March 9, 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 with respect to employment on the basis of disability.

2The applicant alleges that he was treated unfairly with respect to his disability benefits and not provided with appropriate modified work by the respondent employer. 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’s narrative indicates that he initiated a grievance with the assistance of his union. The applicant provided a copy of his failure to accommodate grievance dated September 9, 2011.

3On April 17, 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 Food & Commercial Workers Canada, Local 175 & 633, (“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 May 3, 2012, the respondent filed submissions supporting deferral. The respondent submits that the applicant has filed two grievances – one in September 2011 alleging failure to accommodate and a second in December 2011 alleging lost wages. The respondent indicates that both grievances have been referred to arbitration and were scheduled to proceed on May 31, 2012 before Arbitrator Marilyn Silverman. The respondent submits that since the grievances deal with the same issues as advanced by the applicant in his Application it would constitute an abuse of process to allow the applicant to continue with his Application simultaneous with the arbitration.

5On May 10, 2012, the applicant’s union wrote to the Tribunal and advised that it takes no position with respect to the issue of deferral.

6The applicant did not file submissions.

Deferral

7The 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.

8Some 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.

9The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is an 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.

10I see no reason to depart from the Tribunal’s general approach and find that deferral is warranted in the present circumstances. The applicant’s grievances were commenced prior to this Application and currently in arbitration. The applicant’s first grievance is clearly worded as a failure to accommodate and this same matter is alleged in this Application. The applicant does not contest that his grievance is related to the facts and issues raised in the Application. There is no indication that the human rights issues alleged in the Application and raised in the grievance will not be resolved or dealt with through the arbitration process.

11As 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.”

12As 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/arbitration proceedings.

13Where 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).

14I am not seized of this matter.