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HUMAN RIGHTS TRIBUNAL OF ONTARIO
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B E T W E E N:
Christopher Smith
Applicant
-and-
Flexmaster Canada Limited, Gianluca Amendola, Ashvin Mistry, Harold Tugadi, Donald Sprung and Henry Payes
Respondents
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INTERIM DECISION
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Adjudicator: Keith Brennenstuhl
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Date: August 21, 2012
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Citation: 2012 HRTO 1600
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Indexed as: Smith v. Flexmaster Canada Limited
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[1] This is an Application filed under section 34 of Part IV of the [Human Rights Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html), R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.
[2] On July 16, 2012, the Tribunal sent a Notice of Intent to Defer to the parties indicating that the Tribunal had determined that it might be appropriate to defer consideration of the Application pending the resolution of another legal proceeding dealing with the subject-matter of the Application. The Tribunal directed the parties to deliver and file any written submissions which they wished to make in respect of the deferral issue within 30 days of the date of the Notice of Intent to Defer.
[3] The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and encloses a copy of the grievance filed on his behalf by his union, SMWIA, Local 30 (the “union”).
[4] The applicant did not file submissions with respect to the deferral issue in response to the Tribunal’s Notice of Intent to Defer. The respondents, as well as the union, take the position that the Application should be deferred on the basis that the issues in the grievance and the Application are the same, the grievance has advanced, an arbitrator has been agreed upon and the parties are in the process of scheduling the matter for hearing.
[5] The Tribunal may defer consideration of an Application on such terms as it may determine, on its own initiative or at the request of a party (Rule 14.1). Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider whether deferral is the most fair, just and expeditious way of proceeding with the Application.
[6] Some, if not all, of the facts and issues raised in this Application are part of a grievance and arbitration process that is still in progress. Both the Application and the grievance relate to the accommodation of the applicant’s medical condition and restrictions. Since the issues in the Application and the grievance overlap, proceeding with the Application at the Tribunal could very well lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievance. The primary purpose of deferring an Application is to avoid such potential inconsistency. I find that, in all of the circumstances, deferring the Application is appropriate.
[7] The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the proceedings before the OLRB. The Rules of Procedure are available on the Tribunal’s website, www.hrto.ca.
[8] I am not seized.
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Dated at Toronto, this 21<sup>st</sup> day of August, 2012.
“Signed by”
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Keith Brennenstuhl
Vice-chair
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minicounsel