Minnie v. Invista Canada Company, 2012 HRTO 866

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jerry Minnie Applicant

-and-

Invista Canada Company Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith Date: May 1, 2012 Citation: 2012 HRTO 866 Indexed as: Minnie v. Invista Canada Company

WRITTEN SUBMISSIONS

Invista Canada Company, Respondent ) Robert W. Little, Counsel

INTRODUCTION

1This is an Application filed February 29, 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 age.

2The Application notes that a workplace grievance dealing with the same issue raised in the Application was lodged by the applicant’s bargaining agent, the Kingston Independent Nylon Workers Union (“KINW”) on November 24, 2011.

3The Tribunal sent the parties a Notice of Intent to Defer on March 12, 2012. The Notice of Intent to Defer was also sent to the KINW. The Tribunal requested submissions from the parties and the KINW with regard to the deferral of the Application. The deadline for submissions was April 13, 2012.

4In its response to the Notice of Intent to Defer filed April 4, 2012, the respondent submitted that the deferral of the Application pending the conclusion of the ongoing workplace grievance-arbitration process was appropriate. The respondent advised that the grievance had been referred to arbitration.

5As of this date, neither the applicant nor the KINW responded to the Notice of Intent to Defer.

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 of Ontario, 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 (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 grievance, the allegation that the respondent employer denied overtime opportunities to the applicant because of his age, 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 labour arbitrator. However, given the considerable factual overlap between the two proceedings, the potential for the arbitration to determine some or all of the issues in this Application and the applicant’s silence in the face of the respondent’s request to defer, I find that the circumstances of this case favour deferral. See O’Brien above, Gordon v. Leisureworld Caregiving Centre, 2011 HRTO 577 and Lafferty v. Ford Motor Company of Canada, Limited, 2012 HRTO 695.

ORDER

9The Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the arbitration process involving the grievance of November 24, 2011. The Tribunal directs the parties’ attention to Tribunal 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.