Kashmir Singh v. Olymel, 2014 HRTO 223

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kashmir Singh

Applicant

-and-

Olymel

Respondent

-and-

United Food and Commercial Workers Union, Local 175

Intervenor

INTERIM DECISION

Adjudicator: Ruth Carey

Date: February 18, 2014

Citation: 2014 HRTO 223

Indexed as: Singh v. Olymel

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 and contracts because of disability. The Application alleges that after the applicant became disabled, the respondent employer should have accommodated him by providing him with modified or alternative work. It also alleges that the applicant’s subsequent termination from employment was a breach of the Code. The applicant’s employment was terminated after a labour arbitrator ruled that accommodating the applicant’s disability was impossible given all the circumstances.

2This Interim Decision addresses the issue of whether or not this Application should be deferred pursuant to s. 45 of the Code pending the final resolution of two grievances initiated by the intervenor on the applicant’s behalf.

3On July 31, 2013, the Tribunal notified the parties that it intended to conduct a preliminary hearing to determine whether or not the Application should be dismissed in whole or in part pursuant to s. 45.1 of the Code. Section 45.1 says the Tribunal may dismiss an application if another proceeding has appropriately dealt with the substance of the application. The reason the Tribunal did this was because the applicant provided the Tribunal with a decision by Arbitrator Peter Barton issued on March 17, 2013. Arbitrator Barton’s decision is the result of a grievance filed by the intervenor on behalf of the applicant. The body of the decision indicates the subject matter of the grievance is the same as one of the allegations raised in the Application; namely, that the respondent breached the Code when the applicant became disabled by failing to provide him with modified or alternative employment.

4On December 19, 2013, the parties attended for the preliminary hearing via teleconference. At the beginning of the preliminary hearing the intervenor’s representative informed me that the intervenor had filed an application for judicial review with respect to Arbitrator Barton’s decision. The Tribunal was also informed that a second grievance has been filed and is outstanding; it apparently addresses the balance of the allegations in the Application concerning the applicant’s dismissal from employment following the release of Arbitrator Barton’s decision. Neither grievance appears to have been filed with the Tribunal.

5The Tribunal adjourned the preliminary hearing on the basis that the judicial review application means that the question of whether or not the arbitration appropriately dealt with the substance of this Application is premature.

6Rule 14 of the Tribunal’s Rules of Procedure says that the Tribunal may, on its own initiative, defer consideration of an application pursuant to section 45 of the Code. During the preliminary hearing I indicated to the parties the Tribunal would be issuing a Case Assessment Direction (“CAD”) asking for submissions on the question of whether or not the Application should be deferred given the judicial review application and the outstanding second grievance regarding the termination of the applicant’s employment.

7The CAD was issued on January 3, 2014, and directs the applicant to provide submissions on the issue of deferral by January 31, 2014. On January 30, 2014, the applicant’s representative wrote saying the applicant consents to deferral of the Application. The CAD of January 3, 2014, also states that if the intervenor wishes to make submissions with respect to the deferral issue it must do so by January 31, 2014. The intervenor has not filed submissions concerning deferral and the timeline for doing so is now passed. The CAD invited the respondent to reply to the applicant’s deferral submission by February 7, 2014. The respondent has not filed submissions with respect to deferral and the timeline for doing so has similarly passed.

8The 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.

9The 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).

10The 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.

11In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievances. The matter is still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant’s second grievance will be referred to arbitration or whether or not the arbitrator’s decision with respect to the first grievance will be upheld or over-turned. The applicant consents to the Application being deferred and the respondent does not object. If the applicant believes, on conclusion of the process with respect to the two grievances, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

12The Application will therefore be deferred pending the completion of the grievance process.

13The 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.

14I am not seized.