Gregory Smith v. General Motors of Canada Limited, 2013 HRTO 1081

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gregory Smith

Applicant

-and-

General Motors of Canada Limited

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: June 18, 2013

Citation: 2013 HRTO 1081

Indexed as: Smith v. General Motors of Canada Limited

WRITTEN SUBMISSIONS

Gregory Smith, Applicant

Self-represented

General Motors of Canada Limited, Respondent

David Bannon, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. A copy of the Application was sent to the respondent for response and to the Canadian Auto Workers Local 222, the applicant’s bargaining agent (“the union”) as an affected party. The respondent has filed a Response. The union has not communicated with the Tribunal.

2In its Response, the respondent submitted that the applicant filed a grievance about his termination on December 2, 2011. A copy of the grievance was attached to the Response. The respondent requests that the Tribunal defer the Application as the applicant’s grievance remains outstanding and following a Step 3 meeting on December 19, 2011, the union filed a Notice of Appeal dated December 23, 2011.

3By letter dated February 25, 2013, the Tribunal sent the applicant a letter entitled “Delivery of Response and notice of Request to Defer” (“the Request”). The Tribunal directed the applicant to file a Reply to the Response including complete submissions in response to the respondent’s request to defer. The applicant was advised that if he did not file written submissions by the required date, the Tribunal would make its decision based only on the information in the Application and Response or may consider failure to file a Reply in these circumstances as an abandonment of the Application and may dismiss the Application for that reason. The respondent and the union were copied on the letter. The union has not communicated with the Tribunal.

4On March 11, 2013, the applicant wrote to the Tribunal requesting a three-week extension to file his Reply. The respondent did not oppose the extension request, and the Tribunal granted it.

5A Case Assessment Direction (“CAD”), dated April 24, 2013, was issued to the parties by the Tribunal. The Tribunal had not received the applicant’s submissions prior to issuing the CAD. In the CAD, the Tribunal stated that it would find it helpful to receive an update from the respondent about the status of the grievance. It gave the applicant a further opportunity to file submissions addressing the Request.

6The respondent filed updated information as it was directed to in the CAD. The respondent advised that the grievance was still active although the union had not yet referred it to the fourth step of the grievance process, which is to schedule the grievance to arbitration. The respondent understands that the union has requested medical documentation from the applicant in support of the grievance.

7The respondent submits that the grievance process that it shares with the union is “…one of the most mature and sophisticated procedures in the Province. It successfully processes and settles hundreds of grievances at various stages of the procedure each year. Relatively few actually go to an arbitration hearing and the parties ensure that those that do have been properly discussed, vetted and the relative information is obtained”. The respondent requests that this procedure should be “… respected and not set aside or interfered with by the Tribunal in accordance with established case law and procedures”. The respondent requests that the Application be deferred pending the outcome of the grievance process.

8The applicant sent several emails to the Tribunal after the issuance of the CAD and both dated April 30, 2013. In his first one, he sought clarification of what, if any, actions he was required to take. The Tribunal responded by email, copying the respondent, and confirming the directions set out in the CAD to which he was required to respond. The applicant did not set out any submissions with respect to the respondent’s request to defer the Application because of the outstanding grievance.

9In the second email, the applicant referenced a discussion he had with “the legal division of the HRTO” and the advice that he obtained from that division. Again, the Tribunal sent the applicant an email, copying the respondent, confirming that the Tribunal does not provide advice and that his discussions would have been with the Human Rights Legal Support Centre (“the Centre”). The Centre provides legal representation for applicants in human rights matters and is established under the Code. The applicant did not file any submissions addressing the request to defer.

deferral

10Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal has the discretion to defer consideration of an application. Deferral of an application ensures that legal proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

11The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, 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 part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

12The 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.

13In 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. However, it is still not yet apparent whether or not the applicant’s grievance, which was filed in 2011, will be referred to arbitration. In these circumstances, I find it appropriate to defer the Application for another six-month period of time.

14If the applicant believes, on conclusion of that time period, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure. In the event that the applicant seeks to have his Application resurrected, he must also provide information about the status of the grievance and whether it has been referred to arbitration by the union.

order

15The Tribunal orders the deferral of the Application for a further six-month period, commencing from the date of this Interim Decision.

16I am not seized with this matter.