HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Balint Skiba
Applicant
-and-
GM Canada - CAMI Assembly Plant
Respondent
INTERIM DECISION
Adjudicator: Judith Keene
Indexed as: Skiba v. GM Canada - CAMI Assembly Plant
WRITTEN SUBMISSIONS
GM Canada - CAMI Assembly Plant
David J. Bannon, Counsel
Introduction
1This is an Interim Decision in respect of an Application filed on August 29, 2012 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.
2On November 15, 2012, the respondent filed a Request for an Order (“Request”) that the Application be deferred pending resolution of a grievance dated August 18, 2012. The applicant did not respond to the Request, the time for doing so has expired.
3The Application alleges failure to accommodate the applicant’s needs arising from a workplace injury. The allegations include a claim that the respondent, in January, 2011, eliminated a job that apparently would have accommodated the applicant's disabilities, within months of his placement in that job. The Application also alleges a failure to accommodate since that time.
4A copy of a grievance appended to the Request includes Step Three submissions by the applicant's union dated November 2, 2012. The submissions deal in some detail with unsuccessful “work trials”, including alleged dismissal by the respondent of alternative strategies, alleged denial by the respondent in January of 2012 of a posting that would have been within the applicant's medical restrictions, failure to modify a job in “any sustainable manner”, and a denial of sickness and accident benefits during the period that the respondent had no work within the applicant's restrictions.
5The 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).
6The 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.
7In 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. I am satisfied that the concerns the applicant raises about the Union’s position on his grievance do not justify a departure from the Tribunal’s normal approach. The matter is still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant’s grievance will be referred to arbitration. But 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.
8The Application will therefore be deferred pending the completion of the grievance process.
9The 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.
10I am not seized.
Dated at Toronto, this 4th day of December, 2012.
“Signed by”
Judith Keene
Vice-chair```