Morand v. BASF Canada Inc., 2013 HRTO 190

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeff Morand

Applicant

-and-

BASF Canada Inc., Kevin Parent and Guido Broche

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price Date: February 4, 2013 Citation: 2013 HRTO 190 Indexed as: Morand v. BASF Canada Inc.

1This is an Application under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent discriminated against the applicant because of disability with respect to employment. Among other things, the applicant alleges that the respondents discriminated against him by failing to accommodate his disability-related needs in the workplace and by terminating his employment. The Application was filed against the applicant’s former employer, BASF Canda Inc., as well as Kevin Parent and Guido Broche.

2The applicant requests that the Tribunal defer consideration of his Application, pending the conclusion of a grievance and arbitration process in respect of an October 2011 grievance that, on its face, clearly raises some or all of the same facts and issues as the Application.

3On November 5, 2012, the Tribunal sent a Notice of Intent to Defer to the parties directing them to make submissions as to why consideration of the Application should or should not be deferred, pending the resolution of another legal proceeding, namely a grievance filed pursuant to a collective agreement between the respondent employer and the applicant’s bargaining agent.

4In their January 2013 response to the Notice of Intent to Defer, the respondents state that they are “prepared to allow the Application to be deferred”, provided that Kevin Parent and Guido Broche are removed as personal respondents to the Application. The respondents indicate that the applicant consents to the removal of Messrs Parent and Broche as personal respondents to the Application in exchange for the respondents’ consent to deferral of the Application. Specifcally, the respondents describe their consent to deferral of the Application as “consideration flowing to the applicant” conditional upon the removal of Messrs Parent and Broche as parties to the Application.

5The 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 (Rule 14.1). Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also 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.

6Although I appreciate the parties’ attempts to resolve the deferral issue among themselves, the fact of the matter is that whether or not the Application ought to be deferred is an adjudicative decision, based on the relevant factors noted above. It would not be appropriate for the Tribunal to base its decision whether to defer the Application on the parties’ agreement to remove the personal respondents as parties to the proceeding.

7In this case, the facts and issues raised in the Application overlap significantly with those raised in an October 2011 grievance filed on behalf of the applicant by his trade union, which grievance is still outstanding. Proceeding with the Application at the Tribunal while the grievance and arbitration procedure is ongoing could very possibly lead to inconsistent decisions on the facts and/or legal issues that are raised in both the Application and the grievance. The primary purpose of deferring an Application is to avoid such potential inconsistency. In all of the circumstances, it is appropriate to defer consideration of the Application.

8The Application is hereby deferred pending the conclusion of the grievance and arbitration process in respect of the applicant’s grievance. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure available at www.hrto.ca, which outline the process by which the Application may be brought back on after the grievance arbitration has been concluded.

9The Tribunal will address the respondents’ request that the personal respondents be removed as parties to the Application, if and when the Application is reactivated.

10I am not seized of this matter.