Terrance Hadaway v. Hudson’s Bay Company, 2013 HRTO 24

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terrance Hadaway Applicant

-and-

Hudson’s Bay Company Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: January 7, 2013 Citation: 2013 HRTO 24 Indexed as: Hadaway v. Hudson’s Bay Company

WRITTEN SUBMISSIONS

Terrance Hadaway, Applicant ) Fred Sadori, Representative Hudson Bay Company, Respondent ) Hilary E. Jarvis, Counsel United Steelworkers, Local 9042 ) Cathy Braker, Counsel

1The applicant filed this Application on July 13, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination with respect to employment on the basis of disability.

2The Application was originally filed as against the applicant’s employer, the respondent Hudson’s Bay Company, and the applicant’s union, the United Steel and Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 9042 (“the union”), as respondent parties. However, due to an administrative error the Tribunal processed the Application only as against the respondent employer. As such, the union was not directed to respond to the applicant’s allegations.

3On September 4, 2012, the union filed a Request to Intervene in this Application. The union stated that it has relevant information with respect to the issues raised in the Application noting that a grievance, which it filed on February 7, 2012 on behalf of the applicant, has been referred to arbitration before Arbitrator Kaplan. Along with its intervention request, the union also asked that the Tribunal defer the Application pending the outcome of the grievance arbitration.

4The respondent filed its Response on September 18, 2012 denying the applicant’s allegations. In its Response, the respondent requested that the Application be deferred based on the fact that the applicant’s outstanding grievance is related to the subject matter of this Application. The respondent noted that the arbitration is scheduled to proceed on January 14, 2013.

5While the applicant filed submissions opposing the union’s request to intervene, the applicant did not raise the issue of the union having been originally identified as a respondent party. The applicant filed submissions opposing deferral alleging that the union has not kept him properly apprised of the grievance.

6The Tribunal issued a Case Assessment Direction, dated November 28, 2012, requiring the applicant to clarify his intentions with respect to whether or not he seeks to proceed as against the union. The respondent and the union were also required to file submissions in response to the applicant’s position.

7The applicant has confirmed his intention to proceed against the union and the respondent employer submits that the union should also be identified as a respondent party to the Application. The union submits that there is no reasonable prospect of success because the applicant’s allegations simply impugn the union’s involvement in the collective bargaining and grievance process.

DEFERRAL

8The 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 ensures that proceedings dealing with the same issues do not run concurrently.

9Some 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.

10The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is an on-going grievance under a collective agreement based on the same facts and issues as raised in the Application. In so doing, the Tribunal has relied on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, wherein the Supreme Court of Canada confirmed 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.

11I see no basis to depart from the Tribunal’s regular approach to defer an application where the application overlaps with an active grievance.

12In the present case, the applicant has an outstanding grievance which relies on facts and raises issues which overlap with the allegations set out in the Application. In both matters, the applicant alleges that he has been demoted and is “no longer being accommodated” in his previous classification. The grievance process is well underway and an arbitration hearing is scheduled to commence on January 14, 2013.

13In the interest of efficiency and to avoid concurrent proceedings, the Tribunal will defer this Application pending the completion of the grievance and arbitration procedures.

ORDERS

14The Application is deferred pending the conclusion of the grievance and arbitration processes.

15Where 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).

16The Tribunal notes that there remains an outstanding issue regarding the union’s status and role in this Application. This issue will be addressed by the Tribunal if and when the Application is reactivated.

17I am not seized of this matter.