Phan Chau v. Olymel, 2012 HRTO 771

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Phan Chau Applicant

-and-

Olymel Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith Date: April 17, 2012 Citation: 2012 HRTO 771 Indexed as: Chau v. Olymel

WRITTEN SUBMISSIONS

Phan Chau, Applicant ) Self-represented Olymel, Respondent ) Stephen C. Bernardo, Counsel )

INTRODUCTION

1This is an Application filed December 12, 2011, 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.

2The Tribunal sent the parties a Notice of Intent to Defer on February 27, 2012. The Notice of Intent to Defer was also sent to the applicant’s bargaining agent, the United Food and Commercial Workers, Local 175 and 633 (UFCW). The Tribunal requested submissions from the parties and the UFCW with regard to the deferral of the Application. The deadline for submissions was March 28, 2012.

3In its response to the Notice of Intent to Defer filed March 9, 2012, the respondent submitted that the deferral of the Application pending the conclusion of the ongoing workplace grievance-arbitration process was appropriate.

4Neither the applicant nor the UFCW responded to the Notice of Intent to Defer.

5The respondent advises in its submissions that six grievances were lodged by UFCW on behalf of the applicant between July and September 2011. Three of the grievances, dated July 18, August 8 and August 10 relate or refer to alleged discrimination on the basis of disability. The July 18 grievance is presently before a labour arbitrator.

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 issues at the heart of the grievances, the allegations that the respondent employer failed to accommodate the applicant’s disability and disciplined the applicant because of his disability, are also the key issues covered by this Application. There may be issues raised by the Application that go beyond those that may be litigated before the labour 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

9The 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 involving the grievances of July 18, August 8 and August 10, 2011. 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 with Rule 19, that the Tribunal proceed with an application after the conclusion of the other proceeding.

10I am not seized of this matter.