Lafferty v. Ford Motor Company of Canada, Limited, 2012 HRTO 695

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Lafferty Applicant

-and-

Ford Motor Company of Canada, Limited Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith Date: March 28, 2012 Citation: 2012 HRTO 695 Indexed as: Lafferty v. Ford Motor Company of Canada, Limited

WRITTEN SUBMISSIONS:

Ford Motor Company, Limited, ) E.C. (Lisa) Kozma, Counsel Respondent )

INTRODUCTION

1This is an Application filed January 18, 2012, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination in employment because of disability and creed.

2In its Response filed March 1, 2012, the respondent requested deferral of the Application pending the conclusion of an ongoing workplace grievance-arbitration process.

3The Tribunal sent the parties a Notice of Request to Defer on March 1, 2012. The Request was also sent to the applicant’s bargaining agent, the Canadian Autoworkers Union, Local 707 (“CAW”). The Tribunal requested submissions from the parties and the CAW with regard to the deferral of the Application. The deadline for submissions was March 15, 2012.

4Neither the applicant nor the CAW responded to the Request and the deadline for submissions has now passed.

5The respondent advises in its Request that two grievances were lodged by CAW on behalf of the applicant on January 3, 2012. The grievances are awaiting discussions between the CAW and the respondent.

ANALYSIS

6Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law. While deferral is not automatic, it can be granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application include; the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See, Christianson v. College of Physicians and Surgeons, 2009 HRTO 438, and Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.

7The Tribunal has deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. See, Blackman v. Ontario (Minister of Community Safety and Correctional Services), 2009 HRTO 970. In explaining these decisions, 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 a part of the collective agreement. See, Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 and O’Brien v. Burlington (City), 2009 HRTO 1818.

8I find it appropriate to defer this Application pending the completion of the grievance process. The key issue at the heart of the grievances, the allegation that the respondent employer disciplined the applicant because his disability is also the key issue covered by this Application. There may be issues raised by the Application that go beyond those that may be litigated before the arbitrator. However, given the considerable factual overlap between the two proceedings, the potential for the arbitration to determine some of the issues in this Application, and given the rational and orderly litigation of the various issues between this applicant and his employer I find that the circumstances of this case favour deferral. See O’Brien above, and Gordon v. Leisureworld Caregiving Centre, 2011 HRTO 577.

ORDER

9Therefore, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

10I am not seized of this matter.