Smit v. Diageo Canada Inc., 2012 HRTO 1208

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jonathan Smit

Applicant

-and-

Diageo Canada Inc.

Respondent

-and-

CAW-TCA Canada

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: June 19, 2012

Citation: 2012 HRTO 1208

Indexed as: Smit v. Diageo Canada Inc.

WRITTEN SUBMISSIONS

Jonathan Smit, Applicant

Self-represented

Diageo Canada Inc., Respondent

Henry Dinsdale, Counsel

CAW-TCA Canada, Intervenor

Colette Hooson, Representative

1This Application was filed on August 11, 2011 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, reprisal and association with a member of a protected group.

2The Application was amended by way of Interim Decision 2012 HRTO 300 to include the allegations of discrimination beginning in November 2011. As noted in the Interim Decision, the applicant alleges that he was subjected to discriminatory and harassment in November 2011, December 2011 and January 2012.

3On March 1, 2012, the applicant's Union filed a request to intervene.

4On April 5, 2012, the respondent filed a Response, wherein it requests that the Tribunal dismiss the Application as appropriately dealt through an investigation conducted by a joint employer-union committee. Alternatively, the respondent asks that the Tribunal defer the Application pending the conclusion of a grievance process.

5On April 16, 2012, the Tribunal issued a Notice of Intent to Dismiss/Defer. The Tribunal directed the applicant to file written submissions with respect to the respondent's request to dismiss or defer.

6On May 10, 2012, the applicant filed submissions opposing the respondent's request. The applicant submits that the Application should proceed because he does not have faith in the internal process.

Request to Intervene

7As the Tribunal indicated 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.

8In accordance with the Tribunal's standard practice where an applicant is a member of a bargaining unit represented by a union, the Union's Request to intervene is granted. The scope of the Union's participation in the hearing will be determined by the adjudicator hearing the Application.

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.

10Factors 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 will generally defer an application where there is an ongoing grievance or arbitration under a collective agreement based on the same facts and issues. I see no reasons to depart from this approach. The Application as amended by the Interim Decision focuses on events from November 2011 to January 2012. The applicant acknowledges that there is an outstanding grievance regarding the January 2012 events and that this incident is key to his allegations of discrimination and harassment regarding the issue of disability.

12Given the overlap in the subject matter of this Application and that of the outstanding grievance, I conclude that deferral is the most fair, efficient, and just way of proceeding with this Application. As such, the Tribunal orders the deferral of the Application pending the conclusion of the applicant's grievance.

DIRECTIONS

13The Tribunal orders as follows:

• The Union is added as an intervenor to this Application and the style of cause is amended to reflect the same; and
• The Application is deferred pending the conclusion of the applicant's grievance.

14Where 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).

15I am not seized of this matter.