Martin Kreston v. Metro Ontario Inc., 2012 HRTO 408

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Martin Kreston

Applicant

-and-

Metro Ontario Inc.

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: February 27, 2012

Citation: 2012 HRTO 408

Indexed as: Kreston v. Metro Ontario

1This is an Application filed on October 12, 2011 under section 34 of Part IV of the Human Rights Code, 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.

2The applicant is an employee of the respondent and a member of the Canadian Auto Workers, Local 414 (the “union”), which is the bargaining unit for the employees at the store where the applicant is employed.

3The union has filed a grievance on behalf of the applicant that concerns the same facts and issues raised in the Application. The status of the grievance is not clear from the materials filed by the parties, but it appears that the grievance is ongoing.

4The respondent asks the Tribunal to defer further consideration of the Application until the grievance is resolved. The applicant opposes deferral. He is concerned that he may not be dealt with fairly in the grievance process and does not want the determination of his allegations that the respondent has infringed his Code-protected rights to be delayed.

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 an Application will not automatically be deferred only because the parties are involved in other legal proceedings. Deferral is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case.

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. 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.

8In 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. It is not yet apparent if the applicant’s grievance will be referred to arbitration. But if the applicant believes, at the 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.

9The Application will therefore be deferred pending the completion of the grievance process.

10Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure outline how to reactivate an Application after the grievance process has been completed.