John Burtch v. Lafarge Canada Inc. and Brenda MacPhee, 2013 HRTO 1303

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Burtch

Applicant

-and-

Lafarge Canada Inc. and Brenda MacPhee

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: July 25, 2013

Citation: 2013 HRTO 1303

Indexed as: Burtch v. Lafarge Canada Inc.

WRITTEN SUBMISSIONS

Lafarge Canada Inc. and ) John Saunders, Counsel

Brenda MacPhee, Respondents )

Reasons for Decision

1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of the Application pending the conclusion of a grievance proceeding.

2On March 11, 2013, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3In section 14 a) and b) of the Application, the applicant acknowledged that the facts of the Application are part of a union grievance proceeding that is still in progress. He included a copy of the grievance, which is dated March 26, 2012. However, he did not provide an answer to section 14 c), which states: “Are you asking the Tribunal to defer (postpone) your Application until the other proceeding is completed?”

4On May 23, 2013, the respondents filed a Response, which requested, among other things, that the Tribunal defer consideration of the Application pending the formal resolution of the grievance process.

5On May 29, 2013, the Tribunal delivered the Response to the applicant, and directed him to file a Reply with submissions addressing the respondents’ deferral request. The applicant has not filed a Reply, and the time for doing so has now passed.

6Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, or at the request of any party. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

7In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are 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.

8The Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. 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. See Tekes v. Markham (Town), 2009 HRTO 1665 at para. 7.

9In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. There is an ongoing grievance process, which was started before the filing of this Application, and there is a clear overlap between the facts and issues raised in the grievance and those raised in this Application. Furthermore, the arbitrator has the authority to interpret and apply the Code.

10The applicant has not identified any particular circumstance which would cause the Tribunal to depart from its normal approach. Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance proceeding.

11Where a party wishes to proceed with an Application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

12I am not seized of this matter.