McCoy v. National Automobile, Aerospace, Transportation and General Workers Union of Canada, 2012 HRTO 2190

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randy McCoy

Applicant

-and-

National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada)

Respondent

INTERIM DECISION

Adjudicator: Paul Aterman

Date: November 22, 2012

Citation: 2012 HRTO 2190

Indexed as: McCoy v.National Automobile, Aerospace, Transportation and General Workers Union of Canada

WRITTEN SUBMISSIONS

National Automobile, Aerospace, Transportation and General Workers Union of Canada, Respondent

Lewis Gottheil, Counsel

INTRODUCTION

1The applicant filed this Application on July 11, 2012, alleging discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant challenges his suspension and subsequent dismissal from employment, and seeks accommodation for his disability.

2The applicant’s union, the Canadian Office and Professional Employees Union, Local 343 (“COPE”), filed a grievance alleging that his dismissal by the respondent was a breach of both the collective agreement and the Code. The grievance has been referred to arbitration.

3On September 10, 2012 the Tribunal sent a Notice of Intent to Defer to the parties and to COPE requesting submissions on whether the Application should be deferred. By letter dated October 1, 2012 the respondent submits that deferral is appropriate, as the grievance contests the same suspension and termination as form the basis of the Application before the Tribunal.

4Neither the applicant nor COPE filed submissions with respect to the issue of deferral and the time for doing so has now passed.

DEFERRAL

5The 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.

6The 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).

7The 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.

8Having reviewed both the Application and the respondent’s submissions, I am satisfied that the facts and issues that are the subject matter of this Application are the same as those that form the basis of the grievance.

9Given that there is significant overlap in the subject matter of the grievance and this Application, and given that the applicant has not responded to the Tribunal’s Notice, I am of the view that deferral to the grievance process is appropriate.

order

10The Application will be deferred pending the completion of the grievance process.

11The parties’ attention is directed 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.

12I am not seized.