Pooler v. U.S. Steel Canada Inc., 2015 HRTO 695

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Pooler Applicant

-and-

U.S. Steel Canada Inc. Respondent

A N D B E T W E E N:

Robert Pooler Applicant

-and-

Jodi Koch, Philip LaMacchia, Rosa Puzzo and Gary Jollymore Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: May 27, 2015

Citation: 2015 HRTO 695

Indexed as: Pooler v. U.S. Steel Canada Inc.

WRITTEN SUBMISSIONS

Robert Pooler, Applicant Ron Wells, Representative

U.S. Steel Canada Inc., Jodi Koch, Philip LaMacchia, Rosa Puzzo and Gary Jollymore, Respondents Jonathan Maier, Counsel

1These Applications filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) allege discrimination with respect to employment because of disability. In Application 2014-17732-I, the applicant alleges that the organizational respondent did not accept that he required a transfer to work within his disability-related restrictions, despite his doctor’s diagnosis. In Application 2015-20187-I, the applicant alleges that the individual respondent’s, all of whom work for the organizational respondent, disregarded medical information provided by his doctor and placed him in work not compatible with his medical restrictions. The applicant states that as a result of the individual respondents’ actions he had been held out of work despite the fact that the organizational had work he could perform that is within his medical restrictions.

2The Tribunal deferred Application 2014-17732-I pending the resolution of grievance arbitration proceedings dealing with similar issues. In a letter dated March 27, 2015, the Tribunal advised the parties that it may be appropriate to defer Application 2015-20187-I pending the resolution of another legal proceeding dealing with the subject matter of the Application, i.e., the grievance arbitration proceeding, and invited the parties to make submissions on this issue. In another letter dated March 27, 2015, the Tribunal advised the parties that it proposed to consolidate these Applications and invited any party that objected to consolidation to file written submissions by April 27, 2015.

3On April 20, 2015, the United Steelworkers of America, Local 1005, the trade union that represents the applicant (the “union”), filed submission on the applicant’s behalf in which it opposed deferral of the Application. The applicant submitted that deferral will add to the applicant’s losses because he remains off work and he may be disadvantaged by a “sales process” involving the organizational respondent. The applicant did not file submissions regarding the issue of consolidation.

4On April 28, 2015, the respondents filed their submissions. The respondents’ primary position was that both Applications are stayed, pursuant to an Order of the Superior Court of Justice under the Companies’ Creditors Arrangement Act (“CCAA”). In the alternative, the respondents submitted that it was appropriate for the Tribunal to consolidate and defer the Applications pending resolution of the grievance arbitration process.

Analysis and Decision

5I note, first of all, that the documents filed by the respondents indicate that the stay ordered under the CCAA expired on May 15, 2015, which date has obviously passed. Accordingly, the Applications are no longer stayed, but in my view the Applications should be consolidated and deferred.

Consolidation

6Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together. In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

7On the material filed with the Tribunal thus far, it is clear that the facts underlying these applications are similar and the issue, whether the respondents improperly refused to allow the applicant to return to work, is the same. Avoiding repetitive litigation is a compelling public interest and I find it appropriate to order consolidation of these Applications.

Deferral

8The 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. 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.

9The 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).

10The 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.

11In this case, the Tribunal has already deferred Application 2014-17732-I and, since Application 2014-17732-I and 2015-20187-I have been consolidated and involve similar facts and issues, I find it appropriate to defer both Applications pending the resolution of the grievance arbitration 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.

Order

13The Tribunal orders as follows:

1. Applications 2014-17732-I and 2015-20187-I are consolidated; and,

2. Application 2015-20187-I is deferred.