Snider v. Garda World, 2015 HRTO 474

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ashley Snider

Applicant

-and-

Garda World and Derek Cheslock

Respondents

-and-

United Steel Workers Local 9597

Affected Party

INTERIM DECISION

Adjudicator: Eli Fellman

Date: April 14, 2015

Citation: 2015 HRTO 474

Indexed as: Snider v. Garda World

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. The applicant is employed as a security guard and alleges that the respondents have not provided her with work assignments that adequately accommodate her medical restrictions.

2On March 6, 2015 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(s) related to the same facts and issues as are raised in the Application. If the Application is deferred it would not be considered by the Tribunal until after the grievance/appeal process has finished.

3The applicant opposes deferral. The applicant argues that her grievances against the corporate respondent have not been met, she has not been paid for days of work she has missed as per the grievance, and she has yet to be offered a position which meets her accommodation needs.

4The corporate respondent opposes deferral. The corporate respondent appears to acknowledge that a grievance has been filed and asserts that it is willing to seek out suitable accommodation for the applicant.

5Neither the applicant nor the corporate respondent’s submissions directly address the status of any grievance(s) filed by the applicant, and United Steel Workers Local 9597 (the “union) did not file a submission in response to the NOID.

6However, on February 23, 2015, the applicant submitted to the Tribunal a document created by the union dated February 11, 2015 and addressed to the personal respondent. It indicates that the union is initiating a “Step 1 Grievance” because the corporate respondent has decided not to provide a work position that would accommodate the applicant’s medical restrictions.

7The 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.

8However 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).

9In 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.

10In 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 grievances. The description of the grievance contained the document dated February 11, 2015 is brief but it appears to be very similar to the allegations in the Application. In my view the facts and issues being raised in the two proceedings are largely the same and accordingly are sufficient to support deferral – one of the important reasons to defer being to avoid different conclusions about the facts in two concurrent proceedings.

11The Application will therefore be deferred pending the completion of the grievance process.

12The 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. The other matters raised by the respondent and the affected party will be dealt with by the Tribunal if the Application is brought back on.

13I am not seized of this case.