HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jason Herman
Applicant
-and-
GM Canada – CAMI Assembly and its Agents
Respondent
-and-
Canadian Auto Workers Local 88
Intervenor
INTERIM DECISION
Adjudicator: Ruth Carey
Indexed as: Herman v. GM Canada
WRITTEN SUBMISSIONS
Jason Herman, Applicant
Self-represented
GM Canada – CAMI Assembly and its Agents, Respondent
David Bannon, Counsel
Canadian Auto Workers Local 88, Intervenor
No one appearing
1This is an Application filed on August 23, 2012, 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.
2On August 29, 2013, the Tribunal issued an Interim Decision, 2013 HRTO 1475, deferring the Application pending the outcome of three outstanding grievance proceedings pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure.
3On September 30, 2013, the applicant filed a Request for Order During Proceedings (“RFOP”) asking that the Application be re-activated. On October 9, 2013, the respondent filed a Response to a Request for an Order consenting to the Applicant’s RFOP. The Tribunal then issued a Case Assessment Direction (“CAD”) on November 27, 2013. The CAD observed that the Tribunal had not received confirmation that the grievance proceedings were completed which is required under Rule 14.4. It appears the grievances are not yet resolved.
4On December 16, 2013, the applicant responded to the CAD by letter saying in part:
…my reason for filing Form 10 on September 26, 2013, was to ask the Tribunal to reconsider and/or waive Rules 14.3 and 14.4 and proceed with Rule 19.7. Processing a grievance from beginning to end can take a long time. The Union has many grievances in competition for time and resources. However, because my application has a ground of disability and has to do with my ability to maintain (or not maintain) my livelihood due to my disability, the OHRT could proceed without further delay.
5Pursuant to Rule A4.2 of the Social Justice Tribunals Ontario Common Rules the Tribunal has to power to waive its own Rules except where to do so is prohibited by legislation or a specific rule which is not the case here. However, and as the Tribunal stated in Baker v. Kingston Hospital, 2009 HRTO 2079, at para. 6, there should be a good reason for doing so.
6The reasons given by the applicant in support of his request that the Application of Rule 14.4 be waived are that the grievance process is a lengthy one and his Application involves his ability to maintain his livelihood. I have no reason to question these statements of the applicant although I would note that there is no indication in any of the materials filed that the applicant is not working. This is not an Application that involves termination of employment.
7In my view neither the length of time the grievance procedure takes, nor the importance of the issues to the applicant, are a good reason for waiving Rule 14.4. I say this because these reasons do not speak to or outweigh the important and central purpose served by deferral of the Application. As stated in the Interim Decision issued August 29, 2013, supra, at para. 7:
Since the facts and issues in the Application and the grievances overlap significantly, proceeding with the Application at the Tribunal could very possibly lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievances. The primary purpose of deferring an Application is to avoid such potential inconsistency.
DECISION
8The applicant’s RFOP of September 30, 2013, asking that the Application be re-activated is denied.
Dated at Toronto, this 30th day of December, 2013.
“Signed by”
Ruth Carey
Member