Henry Archibald v. Cancoil Thermal Corporation and Chander Datta, 2013 HRTO 1432

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Henry Archibald

Applicant

-and-

Cancoil Thermal Corporation and Chander Datta

Respondents

-and-

United Food and Commercial Workers Canada, Local 175

Intervenor

INTERIM DECISION

Adjudicator: Alison Renton Date: August 21, 2013 Citation: 2013 HRTO 1432 Indexed as: Archibald v. Cancoil Thermal Corporation

WRITTEN SUBMISSIONS

Hendry Archibald, Applicant

No one appearing

Cancoil Thermal Corporation and Chander Datta, Respondents

No one appearing

United Food and Commercial Workers Canada, Local 175, Intervenor

Erin Wallace, Counsel

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination and harassment with respect to employment because of sex and sexual orientation. The applicant's employment was terminated by the corporate respondent. The respondents filed a joint Response.

2As the parties indicated that they were agreeable to mediation, mediation was scheduled by the Tribunal. It was adjourned several times because of the unavailability of the applicant. The respondents have now withdrawn their consent to mediate and the Tribunal is now determining the next steps for the Application.

the request to intervene

3United Food and Commercial Workers Local 175 ("the union") filed a Request to Intervene ("the Request") in this proceeding as it was the bargaining agent for the applicant in his workplace. It submits that it has an interest in any evidence that may be led regarding the conduct of the union or any of its representatives and that it has a direct interest in any proceeding which may have an impact on the bargaining relationship between it and the corporate respondent. Neither the applicant nor the respondents have filed a Response to a Request for Order During Proceedings with respect to the Request and the time for doing so has elapsed.

4The Tribunal has held in many cases that a union almost always has an interest in a human rights application involving a member, and unless there are exceptional circumstances, the Tribunal will grant it intervenor status when requested. The union in this case is the bargaining agent for the applicant and the Application references discussions the applicant had with representatives of the union about the allegations raised in his Application.

5I am satisfied that the union has an interest in the Application and the Request is granted.

the arbitration

6In the Application and in the Request, the applicant and the union reference a grievance that the union filed on behalf of the applicant in relation to his termination. The union states, in the Request, that after it filed the grievance, the applicant brought the harassment issue to its attention. In the Request, the union submits that the grievance was referred to arbitration, that several arbitration dates were adjourned because of the applicant's unavailability, and that an arbitration date of May 24, 2012 was scheduled. The applicant stated on the Application that documents pertaining to his grievance could be obtained from the union.

7The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The 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).

8The 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.

9Section 45.1 of the Code states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

10The Tribunal has also dismissed a number of applications, pursuant to section 45.1 of the Code where the Tribunal has found that the arbitrator has substantially addressed the substance of the application. See, for example, the recent decision of, Crawford v. O-I Canada Corp., 2013 HRTO 1346.

11In these circumstances, the Tribunal finds it appropriate to receive submissions from the parties about the nature of the grievance filed by the union on behalf of the applicant and the status of the grievance at arbitration.

order

12The Tribunal orders the following:

a. The union is added as an intervenor. The extent of the union's participation at the hearing will be left to the Tribunal member assigned to the hearing;

b. Within 14 business days, the applicant and the union are directed to:

1. file with the Tribunal, copying the respondents, a copy of the grievance and any arbitration decision that has been issued;

2. if the grievance is still outstanding, advise the Tribunal, copying the respondents, about any arbitration dates that are scheduled;

3. If the grievance has been settled, advise the Tribunal, copying the respondent, about the settlement; and

4. File submissions with the Tribunal, copying the respondents, on whether it would be appropriate to defer the Application, and/or dismiss it pursuant to section 45.1 of the Code.

c. Within 10 business days of receipt of the applicant's and the union's submissions, the respondents are directed to:

1. File any response submissions with the Tribunal, copying the applicant and the union, in relation to the issues identified in b above.

13The Tribunal will consider the parties' submissions, and may issue further case directions.

14I am not seized with this matter.