Pennarun v. FCA Canada Inc., 2015 HRTO 1443

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Pennarun Applicant

-and-

FCA Canada Inc., Unifor Canada 1285, Rob Gardiner, Leon Rideout and Ardis Snow Respondents

INTERIM DECISION

Adjudicator: Alison Renton Date: October 29, 2015 Citation: 2015 HRTO 1443 Indexed as: Pennarun v. FCA Canada Inc.

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

2This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

3The applicant indicates in his Application that he filed a grievance alleging that his employer, the respondent FCA Canada Inc. ("the employer"), failed to accommodate his disability. He also mentioned that one of the personal respondents, who is a representative for the respondent Unifor Canada 1285 ("the union"), told him that his grievance would be put on hold while the employer determined its position on a policy grievance that had been filed by the union.

4The respondents filed Responses. In the union's Response, it requests that the Tribunal defer the Application pending completion of the grievance process. The applicant objects to deferral because of the time it will take for the grievances to be completed.

5The Tribunal sent a Registrar's letter to the union asking it to respond to the applicant's statements about these grievances.

6The union responded that the policy grievance is being advanced to arbitration, and it is expected that it will be scheduled in the new year. It submits that it is hoped that a clarification of the policy issue would resolve the individual grievances of the applicant and others.

7The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1 of the Tribunal's Rules of Procedure). 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.

8The 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).

9The 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.

10In this case, there is overlap between the facts and human rights issues covered by the Application and those referred to in the applicant's individual grievance. The applicant alleges that the employer accommodates individual with Workers Safety and Insurance Board ("WSIB") claims ahead of those who do not have WSIB claims. The policy grievance pertains to the employer accommodating all disabled employees, regardless of the underlying cause of the disability (work or non-work related).

11The policy grievance is still active, is being advanced to arbitration, and its outcome could be determinative of individual accommodation grievances, including the one filed by the applicant.

12In my view, it is appropriate to defer the Application pending the completion of the policy grievance process. The Tribunal directs the employer and the union to provide an update to the applicant about the status of the policy grievance, once that policy grievance process has concluded. If the applicant believes, on conclusion of that process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

13It should be noted that where a party wishes to proceed with an application which has been deferred, the party must file a Request for an Order During Proceedings in accordance with Rules 14.3 and 14.4 of the Tribunal's Rules within 60 days after the conclusion of the other proceeding. The employer's Request for Order During Proceedings to remove the personal respondent will be addressed if and when the Application is re-activated.

14I am not seized with this matter.