Crawford v. Sodexo Canada Limited, 2016 HRTO 1595

Human Rights Tribunal of Ontario

B E T W E E N:

Kim Crawford Applicant

-and-

Sodexo Canada Limited Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume Date: December 9, 2016 Citation: 2016 HRTO 1595 Indexed as: Crawford v. Sodexo Canada Limited

WRITTEN SUBMISSIONS

Kim Crawford, Applicant Self-represented

Sodexo Canada Limited, Respondent Michael S. Smyth, Counsel

1This Interim Decision explains why the Tribunal is deferring consideration of this Application until the conclusion of a grievance/arbitration proceeding.

2The applicant alleges discrimination on the basis of disability with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). She alleges a number of examples of conduct supporting her main allegation that the employer has failed in its duty to accommodate her.

3There is an outstanding grievance filed in relation to these incidents dated March 6, 2016, the text of which reads as follows:

We the undersigned claim that the employer has violated the CBA as a whole, and any applicable legislation, by not paying Kim in full for an absence caused by the employer, starting February 22, 2016 and the treatment by management staff regarding Kim’s accommodation needs.

Therefore we request the payment for all days of absence from February 22, 2106 to be paid, that Kim be reinstated to work immediately and accommodated as per the FAF on record, damages, for the undue hardship placed up Kim, and anything else an arbitrator may award.

4Arbitration is scheduled to commence in June 2017.

5The Tribunal issued a Notice of Intent to Defer this Application pending the outcome of the grievance/arbitration process and invited submissions from the parties. The applicant objects to deferral. The respondent and the bargaining agent support deferral.

6The applicant objects to deferral on the basis that she has provided far more information in the Application than is contained in the grievance about her workplace experiences. She believes that the arbitration process will not deal with all of the issues she has raised in the Application nor will it provide the range of compensation options available under the Code.

7The respondent filed written submissions arguing that there is significant overlap in the facts and issues in the Applicant and in the grievance which will require the same facts and issues of liability to be determined

Deferral

8The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). 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 allegations of discrimination brought before it. Deferral avoids the risk of inconsistent findings being made by the Tribunal and an arbitrator if both proceedings were allowed to go ahead at the same time.

9In this case, the grievance broadly relates to the treatment by management staff of the applicant’s need for accommodation. While I note that it would be useful for the union in these circumstances to make direct reference to the Code in the grievance, the arbitrator is empowered under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, to interpret and apply the Code and therefore address all of the issues raised by the applicant. The arbitrator will also be in a position to address the labour relations issues which this Tribunal would not have jurisdiction to deal with.

10Given that the issues in the grievance and the Application significantly overlap, the broadly drafted grievance and the power of the arbitrator to apply the Code, I consider deferral of this Application to be appropriate. If a party believes that the human rights issues are not appropriately dealt with at arbitration, they may request that this Application be reactivated and considered under section 45.1 of the Code.

11The bargaining agent has requested intervention status in this Application. That issue will be dealt with if and when a request is received to reactivate.

ORDER

12The Tribunal makes the following orders:

a) The Application is deferred pending resolution of the grievance/arbitration procedure;

b) The parties’ attention is directed to the Tribunal Rules 14.3 and 14.4, which outline the timeline and procedure by which a party may seek to bring the Application back on after the conclusion of the grievance proceeding; and

c) The request by the bargaining agent to intervene in this Application is deferred pending receipt of a request to reactive.