Byrnes v. Dupont Canada, 2012 HRTO 556

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ronald Byrnes

Applicant

-and-

Dupont Canada – Ajax Site and John Murtach

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: March 21, 2012

Citation: 2012 HRTO 556

Indexed as: Byrnes v. Dupont Canada

1This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant indicated in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and enclosed a copy of the grievance filed on his behalf by his union, the Communications, Energy, Paperworkers Union of Canada, Local 1166.

3On December 22, 2011 the Tribunal issued a Notice of Intent to Defer because of the ongoing grievance procedure. The parties were invited to make submissions about whether the Tribunal should defer further consideration of the Application.

4The applicant opposes deferral although it appears that this is because he is concerned that the human rights issues he raises in the Application will not be dealt with.

5The respondents filed submissions and agree that the Application should be deferred. The respondents advise that the applicant has filed two grievances and that both have been referred to an Arbitrator. The factual background to the grievances is the same as the factual background to the Application. Both deal with the applicant’s allegation that he was not accommodated in regard to a disability and with the end of the applicant’s employment with the corporate respondent.

6Rule 14.1 of the Tribunal’s Rules of Procedure provide that the Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative.

7The 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).

8Where the parties are already engaged in a 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 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 grievances.

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

10Deferral of the Application does not mean that the Application is dismissed by the Tribunal. It only means that the Tribunal will not take further action until the grievances have been resolved. If the applicant believes, on conclusion of the grievance process that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

11The respondent’s request that the personal respondent be removed will be dealt with if the Application is re-activated.

12Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure explain the procedure to follow to re-activate an Application that has been deferred.