Daniel Leroux v. Coca Cola Refreshments, 2013 HRTO 804

Human Rights Tribunal of Ontario

B E T W E E N:

Daniel Leroux Applicant

-and-

Coca Cola Refreshments Respondent

INTERIM DECISION

Adjudicator: Paul Aterman Date: May 14, 2013 Citation: 2013 HRTO 804 Indexed as: Leroux v. Coca Cola Refreshments

Background

1The applicant filed an Application 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. On November 21, 2012 the applicant, who is a member of the Canadian Auto Workers Union, Local 973, also filed two grievances. Like the Application, the grievances allege a failure of the respondent employer to accommodate his disability.

2On March 28, 2013 the Tribunal sent a letter to the parties inviting their submissions on whether the Application should be deferred pending resolution of the grievance proceedings. They were directed to file their submissions within 30 days of the Tribunal’s letter. No submissions have been filed, and the time for doing so has now passed.

Analysis

3The 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.

4The 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).

5In this case there appears to be a clear overlap between subject matter of the grievances and this Application. They arise out of the same set of facts. Essentially, the applicant alleges that the respondent removed the applicant from a position that he was entitled to retain under the collective agreement. The respondent maintains that it did so because the applicant’s physical limitations preclude him from performing the functions of the job. The applicant claims that he performed the job without problems and could continue to do so, and that the respondent’s refusal to allow this is a breach of its duty to accommodate his disability.

6The grievances have proceeded through the first three steps of the process and the parties agreed to refer the grievances to a mediation that was scheduled to be held on April 9, 2013. There is no information from the parties about whether the mediation took place as scheduled and, if so, what the outcome was.

7There is a substantial overlap of facts and issues between this Application and the grievances. In addition, Code-related issues can be addressed through the grievance proceedings. These provide sufficient reasons to defer consideration of this Application.

8Further, although the grievances were referred to a mediation session on April 9, there is no clear indication on file that this has now led to their resolution. Until the status of the grievances is clear, I have to assume, based on the documents before me, that the grievance proceedings are ongoing.

Order

9The Application will be deferred until the grievance proceedings are resolved.

10The 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.