Sheehan v. Mauser Canada, 2013 HRTO 645

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Sheehan

Applicant

-and-

Mauser Canada

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: April 18, 2013 Citation: 2013 HRTO 645 Indexed as: Sheehan v. Mauser Canada

WRITTEN SUBMISSIONS

Richard Sheehan, Applicant Self-represented

Mauser Canada, Respondent Brian O’Byrne, Counsel

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 16506, Affected Party Robert Healey, Counsel

1This is an Application filed 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 race and reprisal.

2The Tribunal issued a Notice of Intent to Defer (“NOID”) on February 21, 2013 because it determined that it may be appropriate to defer consideration of the Application pending the resolution of another legal matter, i.e., a union grievance, dealing with the subject matter of the Application, pursuant to Rule 14 of the Tribunal’s Rules of Procedure (the “Rules”). In the NOID, the Tribunal directed the parties to make submissions regarding whether the Tribunal should defer the Application.

3The United Steelworker Union, Local 16506, took no position regarding whether the Application should be deferred.

4The applicant filed submissions in which he opposed deferral of the Application. The applicant submitted that the Application deals with different incidents, time frames and legal issues than his grievance. The applicant submitted that the grievance deals only with the termination of his employment and does not deal with any of the human rights violations presented in the Application.

5The respondent submitted that the Tribunal should defer the Application. The respondent submitted that the applicant filed a grievance regarding a suspension he received as well as a grievance challenging the termination of his employment. The respondent submits that the both grievances assert violation of the collective agreement and “all other pertinent legislations, which the respondent submits presumably includes the Code.

Decision

6The 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 complaints of discrimination brought before it.

7The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In 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).

8The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

9In this case, the applicant alleges that the three-day suspension he received for allegedly breaking and entering into a co-worker’s vehicle amounted to a reprisal for raising human rights concerns. The propriety of the suspension is the subject of a grievance that is proceeding to arbitration and it appears that the grievance proceedings are at more advanced stage than the proceedings before the Tribunal. Proceeding concurrently with the Application raises the prospect of inconsistent factual and legal conclusions. The Application will therefore be deferred pending the completion of the grievance process.

10The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. The issue of timeliness may be addressed when and if the matter is brought back before the Tribunal.