Pember v. General Motors of Canada Limited, 2014 HRTO 486

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Pember

Applicant

-and-

General Motors of Canada Limited and Sun Life Assurance Company of Canada

Respondent

Unifor Local 88

Affected Party

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: April 8, 2014

Citation: 2014 HRTO 486

Indexed as: Pember v. General Motors of Canada Limited

WRITTEN SUBMISSIONS

Heather Pember, Applicant

Self-represented

General Motors of Canada Limited and Sun Life Assurance Company of Canada, Respondents

David Bannon, Counsel

Unifor Local 88, Affected Party

Dan Borthwick, Representative

Introduction

1This is an Application filed under section 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 and reprisal.

2This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding. The applicant indicates in the Application that the facts of the Application are part of two union grievance proceedings (13-132 and 13-156) that are still in progress.

3The Tribunal has now received copies of the grievances in question from the applicant and the affected party union, Unifor Local 88. Although the applicant has sent the grievance documents and outlined steps she is currently taking, she does not clearly set out her position with respect to the deferral issue. The respondent supports deferral

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. 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.

5The 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).

6The 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.

7In 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 grievance processes have not concluded. If the applicant believes, on conclusion of the grievance processes, that her human rights issues have not been adequately addressed, she may ask to have his Application brought back on before the Tribunal.

8The Application will therefore be deferred pending the completion of the grievance processes involving grievance 13-132 and 13-156.

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 after the conclusion of the grievance processes.