Zealand v. Metro Ontario Inc., 2015 HRTO 27

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christine Zealand Applicant

-and-

Metro Ontario Inc. Respondent

-and-

United Food and Commercial Workers Union, Local 175 & 683 Intervenor

INTERIM DECISION

Adjudicator: David Muir Date: January 8, 2015 Citation: 2015 HRTO 27 Indexed as: Zealand v. Metro Ontario Inc.

1This is an Application filed under section 34 of Part IV 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.

2On August 13, 2014 the Tribunal issued a Notice of Intent to Defer (NOID) this Application pursuant to s. 45 of the Code pending the conclusion of a grievance proceeding related to the same facts and issues as are raised in the Application.

3The applicant neither opposes nor consents to deferral. The applicant seems to suggest that the grievance procedure has concluded but this is not clear. The respondent argues that the grievance has not been withdrawn by the applicant's union and remains ongoing. The intervenor indicates that a grievance was filed in relation to some of the issues in dispute in this Application and that despite the suggestion of the applicant states that the grievance is as yet unresolved.

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.

5However the Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts. 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).

6In any case where the parties are already engaged in a concurrent legal proceeding in which they are raising the same 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 issues raised in the Application and those referred to in the grievance and in my view the facts and issues being raised in the two proceedings are sufficient to support deferral – one of the important reasons to defer being to avoid different conclusions about the facts in two concurrent proceedings.

8The Application will therefore be deferred pending the completion of the grievance process.

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 process.

10I am not seized of this case.