Human Rights Tribunal of Ontario
B E T W E E N:
Jose Lopes
Applicant
-and-
Group G4S Secure Solutions (Canada) Ltd.
Respondent
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: Lopes v. Group G4S Secure Solutions (Canada) Ltd.
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 and age. The applicant is represented in the workplace by the United Food and Commercial Workers’ International Union Local 333 (“the union”). This Interim Decision addresses the respondent’s request to defer the Application pending the completion of the grievance arbitration process (“the Request”) as a result of several grievances that the union has filed on behalf of the applicant.
2The applicant opposes the Request. In his Reply, the applicant asserts that arbitrators do not have the power or authority to “fine and punish” respondents that are in violation of the Code. Further, he submits that there is no date set for arbitration in the foreseeable future, believes it is against “…the Charter of Rights and Freedoms to force a senior citizen to wait this length of time for a resolution from an arbitrator” and claims that he has been through great financial difficulties while waiting for a resolution of his grievances.
3The 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.
4The 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).
5The 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.
6In 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. The matter is still live and the grievance process has not concluded. One of the grievances has been referred to arbitration, although a date has not been set. 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.
7The Application will therefore be deferred pending the completion of the grievance process.
8The 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.
9The Union’s Request to Intervene will be dealt with by the Tribunal if the Application is brought back on.
10I am not seized.
Dated at Toronto, this 2nd day of November, 2012.
“Signed by”
Alison Renton
Vice-chair