Samuels v. Verdi Alliance Group of Companies, 2015 HRTO 614

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Samuels

Applicant

-and-

Verdi Alliance Group of Companies, Danny Verrilli and John Di Costanzo

Respondents

-and-

Labourers’ International Union of North America, Local 183

Affected Party

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: May 12, 2015

Citation: 2015 HRTO 614

Indexed as: Samuels v. Verdi Alliance Group of Companies

WRITTEN SUBMISSIONS

Andrew Samuels, Applicant

Cecil Norman, Representative

Verdi Alliance Group of Companies, Danny Verrilli and John Di Costanzo, Respondents

Carl Peterson, Counsel

Labourers’ International Union of North America, Local 183, Affected Party

John Evans, Counsel

Introduction

1The purpose of this Interim Decision is to determine whether this Application should be deferred pending the resolution of the grievance filed on behalf of the applicant.

2By Application filed on December 17, 2014, the applicant alleges that the respondent discriminated against him because of disability, race, colour, place of origin, ethnic origin and ancestry contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). He alleged that the discrimination arose from the respondents’ enforcement of a lay-off policy and from harassment, the termination of his employment and the failure to accommodate his disability.

3Both the respondent and the applicant’s union advised the Tribunal that the applicant filed a grievance with respect to the matter raised in his Application which is being referred to arbitration. The grievance is dated August 20, 2014. It alleges that the employer breached the collective agreement and the Code when it failed to accommodate the applicant’s disability and laid him off in whole or in part due to his disability.

4By correspondence filed July 29, 2014, the applicant opposed deferral on the basis that, in his view, there is no overlap between the facts and issues raised in the Application and those raised in the grievance.

decision

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. 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 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.

6Contrary to the applicant’s submissions, there is substantial overlap between the Application and the grievance. Both raise the issue of whether the applicant’s disability was a factor in his lay-off and whether the respondent failed to accommodate the applicant’s disability. The only issue raised in the Application but not in the grievance is whether the applicant was subject to discrimination or harassment because of his race, colour, place of origin and/or ancestry. Notwithstanding this difference, the issues raised in the Application and the grievance are substantially the same. In my view, proceeding with the Application could lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievance. As a result, I find it appropriate to defer this Application pending the completion of the grievance proceeding in this matter.

7The 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 other proceeding.

ORDER

8For the reasons set out above, the Tribunal defers consideration of the Application pending the completion of the grievance proceeding in this matter.

9I am not seized of this matter.