Hai v. Cascades Boxboard Group Mississauga, 2014 HRTO 1595

Human Rights Tribunal of Ontario

Between:

Pham Hai Applicant

-and-

Cascades Boxboard Group Mississauga Respondent

Interim Decision

Adjudicator: Paul Aterman Date: October 29, 2014 Citation: 2014 HRTO 1595 Indexed as: Hai v. Cascades Boxboard Group Mississauga

Written Submissions

Pham Hai, Applicant Ayoob Khan, Counsel

Cascades Boxboard Group Mississauga, Respondent Lorenzo Lisi, Counsel

1This Interim Decision explains why consideration of this Application, which alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), is being deferred.

2The applicant worked for the respondent from 1994 until 2014. In 2013 he took two weeks of medical leave, and in early 2014 he went on medical leave. He alleges that the respondent failed to accommodate his disability by making increasing and unreasonable demands for medical documentation to support his leave, and then terminating his employment. The respondent takes the position that the applicant was not disabled because he was working elsewhere while on leave, and that is why he lost his job.

3The respondent has requested dismissal of this Application on the ground that another proceeding has appropriately addressed the substance of this Application. However, that is not the case because that other proceeding has not commenced. The proceeding in question is a scheduled arbitration of a grievance brought by the applicant’s bargaining agent. The respondent’s alternative request is that consideration of the Application be deferred until the arbitration, which is scheduled to begin on April 10, 2015, concludes. The respondent bases its request on the facts that the subject matter of the grievance and this Application are identical, and that a grievance arbitrator has authority to address any alleged Code violation by the respondent.

4The grievance alleges that the applicant was unjustly dismissed and seeks “full redress”.

5The applicant opposes deferral, but his submissions on this point do not address the respondent’s arguments. They simply claim that the respondent is trying to avoid having the Application dealt with by the Tribunal.

6The normal practice of the Tribunal is to defer considering an Application where there is a pending grievance and there is an overlap of facts and issues in the two proceedings. This is because 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). Deferral avoids the risk of conflicting determinations by two adjudicative bodies in relation to the same facts and issues. There is no reason to depart from the Tribunal’s normal approach in this case because the grievance and the Application are dealing with the same facts and issues. In addition, a date has been set for the arbitration hearing.

7Consideration of the Application will be deferred until the grievance procedure has concluded.

Order

8The request to defer is granted. Where 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).