DeFrancesco v. Loblaw Great Food, 2013 HRTO 1690

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Luigi DeFrancesco

Applicant

-and-

Loblaw Great Food

Respondent

-and-

United Food and Commercial Workers Canada, Local 1000A

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: October 8, 2013

Citation: 2013 HRTO 1690

Indexed as: DeFrancesco v. Loblaw Great Food

WRITTEN SUBMISSIONS

Luigi DeFrancesco, Applicant ) Self-represented

United Food and Commercial )

Workers Canada, Local 1000A, ) Jeff Andrew, Counsel

Intervenor )

1The applicant filed this Application on November 13, 2012, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to employment on the basis of disability and age.

2The applicant’s narrative references concerns regarding his interactions with the United Food and Commercial Workers Canada, Local 1000A (“the Union”).

3On April 8, 2013, the Union filed a Request to Intervene in this Application. The Union states that it is the bargaining agent for a bargaining unit of employees with the respondent employer. The Union indicates that it represents the applicant in a grievance regarding the respondent employer’s alleged delay in accommodating the applicant. The Union’s submissions indicate that the grievance was proceeding to arbitration in July 2013.

4The applicant filed submissions opposing the request to intervene. The applicant submits that the Union has provided him with inconsistent and unreliable support and, therefore, its request to intervene should be denied.

5While the applicant clearly has concerns regarding the Union’s support of his grievance, this is not a basis to deny intervenor status. In accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by a union or association, the Union’s request to intervene is granted. As the Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

6The scope of the Union participation in any hearing will be determined by the adjudicator overseeing this matter. The style of cause is amended to reflect the Union’s as intervenor.

Deferral

7Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, 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. 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.

8Some factors that have been identified as 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 types 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 Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

9Given that the Union’s submissions indicate that the applicant’s grievance was proceeding to arbitration, it may be appropriate to defer this Application pending the completion of that process.

10In these circumstances, the Tribunal requires the parties’ submissions with respect to the issue of deferral. The Tribunal orders as follows:

i. Within 14 days of the date of this Interim Decision, the applicant is directed to file with the Tribunal, copied to the respondent, written submissions regarding whether or not the Application should be deferred pending the completion of the grievance arbitration process;

ii. Within 14 days from receipt of the applicant’s submissions, the respondent and the intervenor are directed to file with the Tribunal, copied to the applicant, reply submissions with respect to the issue of deferral.

11I am not seized.