Smith v. Logistics in Motion Inc., 2015 HRTO 1198

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andra Smith

Applicant

-and-

Logistics in Motion Inc.

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel
Date: September 10, 2015
Citation: 2015 HRTO 1198
Indexed as: Smith v. Logistics in Motion Inc.

WRITTEN SUBMISSIONS

Andra Smith, Applicant

Self-represented

Logistics in Motion, Respondent

Leah Simon, Counsel

Analysis and findings

1This Interim Decision addresses whether this Application should be deferred pending the outcome of a related grievance arbitration proceeding.

2In his Application, the applicant alleges discrimination because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, he alleges that the respondent failed to provide reasonable accommodations for his disability and terminated him due to his disability.

3In addition to filing his Application, the applicant filed a grievance with his union. The grievance challenges the applicant’s termination. The applicant’s union has referred the grievance to arbitration.

4In its Response, the respondent requested that the Tribunal defer consideration of the Application pending the conclusion of the grievance proceeding. The applicant opposed deferral on the basis that his union is seeking his reinstatement whereas he is seeking additional forms of compensation in his Application.

5The Tribunal may defer consideration of an Application on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1 of the Tribunal’s Rules of Procedure). 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.

6The 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 a part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. Thus, the Tribunal will generally defer an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

7There is a substantial overlap between the facts and issues raised in the Application and the grievance. While the grievance does not expressly allege discrimination, it is challenging the applicant’s termination under the collective agreement and all applicable legislation. Due to the substantial overlap between the Application and the grievance, proceeding with the Application could lead to inconsistent decisions on the facts and/or issues raised in the Application and the grievance. As a result, I find it appropriate to defer consideration of the Application pending the conclusion of the grievance arbitration proceeding.

8Once the grievance arbitration proceeding has concluded, if the applicant believes that the proceeding did not appropriately deal with the substance of his Application, he may seek to re-activate his deferred Application. The 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 proceedings. It should be noted that, a party wishing to proceed with an Application must file a request to proceed no later than 60 days after the conclusion of the grievance arbitration proceeding.

order

9The respondent’s deferral request is granted. The Tribunal will defer consideration of the Application pending the conclusion of the arbitration of the grievance filed on behalf of the applicant by his union.