Williams v. Nova Services Group Inc., 2014 HRTO 1818

Human Rights Tribunal of Ontario

B E T W E E N:

Lester Williams

Applicant

-and-

Nova Services Group Inc.

Respondent

-and-

Labourers International Local 183

Affected Party

INTERIM DECISION

Adjudicator: Keith Brennenstuhl

Date: December 22, 2014

Citation: 2014 HRTO 1818

Indexed as: Williams v. Nova Services Group Inc.

1This Application alleges discrimination with respect to employment because of race, colour, ancestry, place of origin, ethnic origin and reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On October 27, 2014 the Tribunal issued a Notice of Intent to Defer (NOID) this application pursuant to s. 45 of the Code pending the conclusion of a grievance arbitration related to the same facts and issues as are raised in the Application.

3The applicant opposes the deferral and requests that the grievance procedure be deferred to his Application. The respondent is in favour of deferral arguing that there is significant overlap between the issues raised in the two proceedings.

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.

5However, the Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts. 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 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.

6There is a clear overlap between the grievance and the application insofar as the termination of the applicant’s employment with the respondent is a central factual issue in each. Even if I were to accept that the grievance arbitration may not be addressing the human rights issues directly, I am of the view that it is appropriate to avoid concurrent proceedings addressing the same factual issues. Avoiding duplicative factual and legal findings on issues that are common to proceedings is critical in the deferral analysis.

7I have also taken into account that the grievance procedure is well advanced. The arbitrator has already convened one mediation date and the hearing is scheduled for February 4, 2015. Under these circumstances, it would be inappropriate to defer the grievance to the Application even if the Tribunal had the power to do so.

8The Application will therefore be deferred pending the completion of the grievance process.

9The 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 or after the conclusion of the grievance process.

10I am not seized of this matter.