Cox v. The Woodbridge Group (Foam), 2016 HRTO 1482

Human Rights Tribunal of Ontario

B E T W E E N:

Lowell Cox

Applicant

-and-

The Woodbridge Group (Foam)

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: November 21, 2016

Citation: 2016 HRTO 1482

Indexed as: Cox v. The Woodbridge Group (Foam)

1This Application alleges discrimination in employment because of race, colour, ethnic origin, and disability. He also alleges reprisal.

2The applicant alleges that he experienced racial profiling at work and that when he complained about this, his employment was terminated.

3The respondent asserts that the Application should be deferred because the applicant has filed grievances relating to the same facts as those that give rise to the Application. The respondent states that the grievances have been referred for arbitration although an arbitrator has not yet been appointed. The respondent notes that the Tribunal will typically defer consideration of an Application when there is a related grievance procedure underway.

4The applicant replied to the respondent’s request for deferral. He asserts that he was surprised to hear that the grievances have proceeded to arbitration. He also indicates that he is concerned that his union may not properly represent him in any arbitration that does occur. The applicant submits that the Collective Agreement requires that an arbitrator be appointed quickly if a grievance is not resolved. The grievances were filed in April 2016, and an arbitrator has not yet been appointed. This leads the applicant to believe that neither the union nor the employer is pursuing the matter. The applicant proposes that the arbitration be deferred to allow him to pursue the Application.

5The applicant notes that the Tribunal’s jurisprudence shows that Applications are not automatically deferred because there is a related grievance proceeding. He submits that in this case, no date for arbitration has been set, and so there is no actual proceeding underway to which the Application could be deferred.

Conclusions

6Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an Application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, defer consideration of an Application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

7Deferral of an application ensures that proceedings dealing with the same issues do not run at the same time, to reduce the possibility of inconsistent decisions on facts or law.

8Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to, having regard to the status of each proceeding and the steps that have been taken to pursue them.

9As noted by the applicant, 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.

10As noted by the respondent, the Tribunal has generally deferred Applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. 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).

11Where 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.

12In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The grievance is a proceeding that is underway and has not been resolved.

13For these reasons, the Tribunal will defer the Application to the grievance proceeding. Following the conclusion of the grievance proceeding, the applicant may ask to have the Application re-activated. To do so, he must file a Request for Order During Proceedings within 60 days of the conclusion of the proceeding.

14I appreciate the applicant’s frustration about delays in the grievance process but at this time I am not satisfied that this provides a basis to depart from the usual practice of the Tribunal to defer consideration of an Application when there is an ongoing grievance proceeding. However, the applicant may also ask that the Application at this Tribunal be re-activated if there has been no progress in advancing the grievances by May 1, 2017. In that event, the applicant may file a Request for Order During Proceedings asking that the Application be re-activated because of undue delay.