Kassim v. TJX (Homesense, Marshalls and Winners Distribution Service), 2013 HRTO 373

Human Rights Tribunal of Ontario

B E T W E E N:

Kamil Kassim Applicant

-and-

TJX (Homesense, Marshalls and Winners Distribution Service) and Trystan Linton Respondents

INTERIM DECISION

Adjudicator: Paul Aterman Date: March 5, 2013 Citation: 2013 HRTO 373 Indexed as: Kassim v. TJX (Homesense, Marshalls and Winners Distribution Service)

WRITTEN SUBMISSIONS

Kamil Kassim, Applicant

No submissions

TJX (Homesense, Marshalls and Winners Distribution Service) and Trystan Linton, Respondents

Allison Taylor, Counsel

Introduction

1This is an Application filed on August 1, 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 and family status.

2The applicant is a member of a union. On January 11, 2012, her union had filed a grievance in relation to the same facts and issues that arise in this Application. The Tribunal sent the parties a Notice of Intent to Defer and asked them to make submissions on whether the Tribunal should defer considering this Application until the grievance proceedings are resolved.

3The respondents argue that the grievance proceedings will address the issues that are raised in the Application, and that it should therefore be deferred. The applicant has not made any submissions on this issue.

Analysis and Decision

4The 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 stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve allegations of discrimination brought before it.

5In 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).

6In this case there is a clear overlap between subject matter of the grievance and this Application. This is a sufficient reason to defer the Application. The grievance form indicates that it has proceeded to step 3 of the grievance process. However, it is not clear that the grievance is proceeding beyond that step, as there is a passing reference in an email from the applicant's former representative, an official of the union, that he is withdrawing as her representative because he had been part of a decision not to proceed with the applicant's grievance.

7Despite this information, there is no clear indication on file that the grievance has actually been withdrawn or otherwise dealt with. Until the status of the grievance is clear, I have to assume, based on the documents before me, that the grievance proceedings are ongoing. In light of this, the Application will be deferred until there is a clear indication that the grievance proceedings are resolved.

Order

8The Application will be deferred until the grievance proceedings are resolved.

9The Tribunal directs the parties' attention to Rules 14.3 and 14.4, which outline the procedure by which a party may seek to bring the Application back on after the conclusion of the grievance process.