Michael Webb v. Norampac Inc. – Trenton Division, 2014 HRTO 994

Human Rights Tribunal of Ontario

B E T W E E N:

Michael Webb

Applicant

-and-

Norampac Inc. – Trenton Division

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: July 8, 2014
Citation: 2014 HRTO 994
Indexed as: Webb v. Norampac Inc. – Trenton Division

WRITTEN SUBMISSIONS

Michael Webb, Applicant
Self-represented

Norampac Inc. – Trenton Division, Respondent
Self-represented

Introduction

1This Application alleges discrimination with respect to employment because of family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2On May 12, 2014, the Tribunal issued a Notice of Intent to Defer because there is another legal proceeding, a grievance dated January 30, 2014, dealing with the subject matter of the Application.

3The respondent agrees that the Application should be deferred, and the applicant disagrees and filed submissions on June 5, 2014.

Decision and Analysis

4The Application is deferred pending resolution of the outstanding grievance.

5The Tribunal may defer consideration of an application on such terms as it may determine, on its own initiative or at the request of a party (Rule 14.1). Deferral of an application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider whether deferral is the most fair, just and expeditious way of proceeding with the application.

6Some factors that have been considered in deciding whether to defer are: the subject matter of the other proceeding; the nature of the other proceeding; the types of remedies available in the other proceeding; and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

7As stated in Melville v. Toronto (City), 2012 HRTO 22:

Deferral avoids two simultaneous proceedings that may result in conflicting determinations, ensures that the respondent need not be actively defending the same matter in two legal proceedings at the same time, and focuses the Tribunal’s limited resources on cases where it is the only process being pursued. In my view, it is consistent with the Tribunal’s mandate to interpret its rules in a fair, just and expeditious manner to defer a case when a grievance is ongoing, whether or not that grievance has yet been referred to arbitration. The grievance process is a stage in dispute resolution before the matter is referred to an independent third party, but that does not mean that there is no proceeding ongoing. Fairness supports avoiding the duplication of proceedings.

8The applicant provided a copy of the grievance in which he requests "full redress" for unjustified discipline and any other Articles that may apply.

9The respondent asserts that it would serve no benefit to review the applicant’s situation in two legal proceedings at the same time, and submits that the Application should be deferred pending the arbitration.

10While the grievance does not set out details, both the Application and the grievance relate to the termination of the applicant’s employment. A determination will have to be made with respect to why the applicant was terminated, which likely will mean that similar factual determinations will be made in the grievance proceeding and in the Application. The issues in the Application and the grievance overlap and proceeding with the Application at the Tribunal could very well lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievances. The primary purpose of deferring an Application is to avoid such potential inconsistency.

11I find that, in all of the circumstances, deferring the Application is appropriate. It will be the most fair and just way of proceeding. The fact that the grievance has not yet been referred to arbitration is not determinative of the issue in my view.

Order

12The Application is deferred pending the completion of the grievance and arbitration process.

13The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance process.