HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tyler Cousineau Applicant
-and-
Resolute Forest Products Respondent
INTERIM DECISION
Adjudicator: Maureen Doyle Date: September 21, 2012 Citation: 2012 HRTO 1793 Indexed as: Cousineau v. Resolute Forest Products
WRITTEN SUBMISSIONS
Tyler Cousineau, Applicant No submissions
Resolute Forest Products, 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”), alleging discrimination with respect to employment because of disability. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.
2With his Application the applicant encloses a copy of a letter to the respondent employer from his union’s counsel, stating that a grievance is filed on his behalf by his union, the International Brotherhood of Electrical Workers, Local 1744 (the “union”).
3The respondent requests that this Application be deferred pending completion of the grievance process.
4In his Application the applicant states that on January 19, 2011, he advised his employer that he was resigning. He alleges that he subsequently attempted to obtain reinstatement from his employer, but that the employer refused. He alleges that this refusal was discriminatory, due to his disability. He alleges that he has been discriminated against “in being denied employment benefits, including time off for medical….reasons”. By way of remedy, he seeks entitlement to medical and other benefits as well as wages and pension contributions from January 19, 2011.
5The above-noted letter from union counsel to the employer states that the union grieves the respondent’s “failure to reinstate” the applicant as requested, its “failure to provide him with access to disability benefits” and its “failure to accommodate Mr. Cousineau in respect of his medical condition”. It states that the union seeks “immediate reinstatement” for the applicant in addition to payment for “all wages and benefits lost including disability benefits from January 2011 onwards”. It also seeks “appropriate workplace accommodation” for the applicant.
6In its Response, the respondent requests that this Application be deferred, pending the resolution of the grievance process. It indicates that the arbitration of the grievance is scheduled to commence October 18, 2012.
7The applicant’s union seeks intervenor status. It also indicates that it has no objection to the respondent’s request for deferral.
8The Tribunal is not in receipt of a response from the applicant to the respondent’s request to defer.
9The 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.
10The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed 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 (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).
11The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where 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. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.
12In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. There are no submissions before me objecting to the deferral and I am aware of no circumstances which would justify a departure from the Tribunal’s normal approach. The matter is still live and the grievance process has not concluded. If the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.
13The Application will therefore be deferred pending the completion of the grievance process.
14The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. The Union’s Request to Intervene will be dealt with by the Tribunal if the Application is brought back on.
Dated at Toronto, this 21st day of September, 2012.
”signed by”
Maureen Doyle Vice-chair