Emy Bonnici v. Loblaws Inc., 2013 HRTO 689

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Emy Bonnici

Applicant

-and-

Loblaws Inc.

Respondent

-and-

United Food and Commericial Workers Canada, Local 1000A

Intervenor

Interim Decision

Adjudicator: Ena Chadha

Date: April 24, 2013

Citation: 2013 HRTO 689

Indexed as: Bonnici v. Loblaws Inc.

WRITTEN SUBMISSIONS

Emy Bonnici, Applicant

Anton Bonnici, Representative

Loblaws Inc., Respondent

Zoe King, Counsel

United Food and Commericial Workers Canada, Local 1000A, Intevenor

Jeff Andrew, Counsel

1This Application was filed on December 10, 2012, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), alleging discrimination with respect to employment on the basis of disability.

2The applicant alleges that he has been assigned heavier work, denied shifts, reduced pay and treated unfairly. The Application notes that there are grievances pending regarding the applicant’s concerns. The applicant provided copies of the grievances dated November 19, 2012 and January 15, 2013.

3The respondent filed a Response on March 18, 2013, denying the allegations. In its Response, the respondent requests that the Tribunal defer the Application pending the completion of the applicant’s grievances.

4The applicant filed a Reply on March 28, 2013. The applicant states that the grievances are progressly slowly and that he has no control over that process.

5On April 4, 2013, the applicant’s union filed a request to intervene in this Application. The union submits that it represents the applicant in regard to his four grievances, involving issues of scheduling, pay and claims of harassment.

INTERVENTION

6Rule 11.1 of the Tribunal’s Rules of Procedure (“Rules”) provides that:

The Tribunal may allow a person or organization to intervene in any case at any time on such terms as the Tribunal may determine. The Tribunal will determine the extent to which an intervenor will be permitted to participate in a proceeding.

7The Tribunal in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, at para. 13, has stated:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

8The applicant is an employee represented by a bargaining agent. I see no reason to depart from the Tribunal’s established practice as stated in Boyce, above, to grant intervenor status when the applicant is a member of a bargaining unit represented by the union.

DEFERRAL

9The 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.

10Some 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.

11The 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.

12The four grievances deal with issues of pay, scheduling and harassment. The applicant has made allegations regarding each of these issues. One of the four grievances pre-dates this Application and three grievances were commenced after the Application. It is apparent that the issues raised in all four grievances overlap with the concerns alleged in the Application. As such, I see no basis to depart from the Tribunal’s regular approach to defer an Application where the Application overlaps with an active grievance.

13Accordingly, this Application will be deferred pending the conclusion of the grievance process.

ORDERS

14The Tribunal orders as follows:

i. The union is granted intervenor status and the style of cause is amended accordingly; and

ii. The Application is deferred pending the conclusion of the grievance process.

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).

16I am not seized of this matter.