Oram v. Abitibi Consolidated Company of Canada, 2012 HRTO 1269

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joseph Oram

Applicant

-and-

Abitibi Consolidated Company of Canada and Communications, Energy and Paperworkers’ Union of Canada, Local 1321

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: June 27, 2012

Citation: 2012 HRTO 1269

Indexed as: Oram v. Abitibi Consolidated Company of Canada

WRITTEN SUBMISSIONS

Abitibi Consolidated Company Of Canada, Respondent

Peter Thorup, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on May 26, 2009 alleging discrimination with respect to employment on the basis of disability.

2The respondent company filed a Response submitting that the Application is stayed or suspended pursuant to Orders that have been made by Justice Gascon of the Québec Superior Court (“the Court”) under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (“the CCAA”). As a result of this, the respondent company submitted that the Application could not proceed. The respondent union supported the respondent company’s position.

3Initially the Application was stayed pursuant to Order of the Court (see Interim Decision, 2009 HRTO 2057). In a second Interim Decision (2011 HRTO 834), the Tribunal directed the respondent company to provide updated information about the respondent company’s CCAA proceedings and the Notice of Disallowance issued by the Monitor to the applicant. This direction was reiterated in the Tribunal’s Case Assessment Direction dated September 2, 2012.

4The respondent company wrote to the Tribunal on September 7, 2011, copying the applicant, the respondent union and the Claims Adjudication Officer who was appointed by the Court. It also confirmed that Ernst & Young Inc. was appointed as Monitor by the Court and that the applicant submitted a dispute which would be determined by the Claims Adjudication Officer, Michel Picher, who was appointed by the Court and that the dispute was yet to be heard. The respondent company’s counsel noted that they did not represent the Monitor, that the Tribunal did not have jurisdiction to add the Monitor as a respondent as it was appointed by the Court and was fulfilling its oversight role on behalf of the Court vis a vis the claims adjudication process.

5In a Case Assessment Direction dated November 17, 2011 (“the CAD”), the Tribunal noted that section 34(11) and 45.1 of the Code as well as the Supreme Court of Canada decision issued in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”) may prevent the Application from proceeding further along in the Tribunal’s process.

6At para. 14 of the CAD, the Tribunal stated:

In light of Figliola, and the Supreme Court of Canada’s comments referenced above, the Tribunal directs the applicant to deliver to the other parties and file with the Tribunal within ten days from the date of this Case Assessment Direction, written submissions explaining whether or not the Tribunal should exercise its discretion under section 45.1 of the Code not to dismiss the Application as well as whether the Application can continue in light of section 34(11) of the Code. The Tribunal also directs that he provide to the parties and the Tribunal a copy of his claim to the Monitor and his dispute to the Claims Adjudication Officer. If the applicant fails to respond within this timeframe, the Application may be dismissed as abandoned.

7The applicant, through his representative, filed submissions in response to the issues identified in the CAD. The applicant submitted that as of December 2011, his dispute had not yet been determined by the Claims Adjudication Officer with the result that section 45.1 of the Code cannot yet apply. He requested that the Tribunal refrain from issuing a decision about section 45.1 until the dispute currently before the Claims Adjudication Officer was resolved. Further, the applicant submitted, section 34(11) of the Code could not apply because the Claims Adjudication Officer had not yet determined the dispute and because he filed his Application before filing his claim to the Monitor and then his dispute with the Claims Adjudication Officer. Finally, he noted that his Application is against two respondents: the respondent company and the respondent union and even in the event that the Application could not proceed against the respondent company, it could still proceed against the respondent union.

8A further Case Assessment Direction dated February 15, 2012 (“the February CAD”) was issued to the parties. In it, the Tribunal stated that in the circumstances of the case, it seemed appropriate for the Tribunal to defer this proceeding until the Claims Adjudication Officer resolved the applicant’s dispute. It noted that pursuant to Rule 14.2 of the Tribunal’s Rules of Procedure, where the Tribunal intends to defer, it is required to first give the parties notice of its intention to defer and give them an opportunity to make submissions. The Tribunal gave the parties 14 days to file submissions in relation to the Tribunal deferring the Application. It also noted that the Application may have been filed beyond the one year limitation period set out in section 34(1) of the Code and, may not, even if assumed to be true, establish a violation of the Code against one or both of the respondents. The Tribunal did not, at this point, require submissions from the applicant regarding these issues but stated that it may require the applicant to respond to such issues at a later point.

9Subsequent to the issuance of the February CAD, the respondent company filed a number of documents that apparently it filed in the CCAA proceedings. Included was a copy of the notice of dispute that the applicant filed for determination by the Claims Adjudication Officer. Amongst other issues being claimed, the applicant claims a violation of the Code. Neither the applicant nor the respondent union have filed submissions with respect to the deferral issue and the time for doing so has passed.

analysis

10The 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.

11The Tribunal has deferred an application where the same facts underlay both a civil action and the application to the Tribunal on the grounds that, although the civil action did not raise human rights issues, it was close to its resolution. See Klein v. Toronto Zionist Council, 2008 HRTO 189. Even if the human rights issues will not be resolved by the civil action, if it is at an advanced stage, it may well be fair, just and expeditious to defer the Tribunal’s proceeding. See Tekes v. Markham (Town), 2009 HRTO 1665.

12In this case, after the applicant’s claim was denied by the Monitor, the applicant filed a dispute which would be determined by the Claims Adjudication Officer. To the Tribunal’s knowledge, the dispute has not yet been determined.

13Accordingly, given the advanced stage of the proceedings before the Claims Adjudication Officer, and that the applicant is alleging, amongst other issues, that the Code was violated, the Tribunal decides that it is appropriate to defer the Application pending the completion of the Claims Adjudication Officer’s proceeding.

14The Tribunal directs the parties’ attention to Rule 14.3 and 14.4 which outline the process by which the Application may be brought back on after the proceeding before the Claims Adjudication Officer has been concluded.

15I am not seized with this matter.