DeSousa v. Qualtech Seating Systems, 2016 HRTO 1654

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark DeSousa

Applicant

-and-

Qualtech Seating Systems, a division of Magna Seating

Respondent

INTERIM DECISION

Adjudicator: Bruce Best

Date: December 21, 2016

Citation: 2016 HRTO 1654

Indexed as: DeSousa v. Qualtech Seating Systems

WRITTEN SUBMISSIONS

Mark DeSousa, Applicant

Lucy Lee, Counsel

Qualtech Seating Systems, a division of Magna Seating, Respondent

Alex Heaslip, Counsel

UNIFOR, Affected Party

No one appearing

Introduction

1This Application alleges discrimination with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The applicant alleges that he was terminated due to his disability on July 15, 2015. The applicant also alleged that his disability had previously not been accommodated in the workplace, and further alleges he had been subject to discrimination on the basis of race, colour and ancestry in assignment of shifts. The Application was filed on July 14, 2016.

2The Application noted that a grievance had been filed challenging the termination of his employment. On its own initiative, the Tribunal issued a Notice of Intent to Defer on November 10, 2016, seeking submissions from the parties on whether the Application should be deferred. The Notice further indicated that the respondent was not required to file a Response at that time.

3The applicant indicated that the hearing of the arbitration of the grievance has already started, with dates held in September and December 2016, and with a further date scheduled for April 2017. The applicant, however, takes the position that the only issue being addressed in the grievance is whether the respondent was entitled to terminate the applicant’s employment based on a delay in providing medical documentation, and will not address the allegations respecting the failure to accommodate his disability, or his allegations respecting the assignment of shifts.

4The respondent takes the position that there is considerable overlap between the issues being addressed in the grievance arbitration and those in the Application. It indicates that the central issue in the arbitration is whether the respondent had just cause to terminate the applicant’s employment, and that given the jurisdiction of an arbitrator, this will address the issue of whether the applicant’s termination was or was not related to his disability.

Decision

5The 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.

6The 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).

7Where 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. The question then is whether the same issues are being addressed in the grievance arbitration and the Application.

Termination of employment

8A central issue to be determined in the Application is the basis for termination of the applicant’s employment on July 15, 2015. It appears this issue is also being addressed in the arbitration. The fact that the same issue will be raised in both proceedings, and given that the arbitration is already underway, favours deferral, as otherwise the two proceedings will be running concurrently. As noted in Baghdasserians v. 674469 Ontario, 2008 HRTO 404, at para. 18 “[d]eferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.”

Accommodation and assignment of shifts

9As noted by the applicant, the earlier allegations respecting accommodation and assignment of shifts are not raised in the grievance. However, I also note that both these incidents occurred more than one year prior to the filing of the Application, and if the Application proceeds, the Tribunal will need to determine whether the earlier allegations are within its jurisdiction under s.34 of the Code.

10If the termination was Code-related, the Tribunal may need to determine whether the earlier allegations formed part of a series of incidents with the termination for the purposes of s.34(1)(b). If the termination was not Code-related, the question will be whether the Tribunal should exercise its discretion to permit the allegations to proceed under s.34(2). In order to determine the appropriate analysis, however, there must first be a determination of whether the termination was or was not Code-related. As this issue is raised in the grievance, it is also appropriate to defer the consideration of these earlier allegations until the conclusion of the arbitration.

Conclusion

11The Application will therefore be deferred pending the completion of the grievance process. However, if the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

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. Where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules of Procedure and Forms can be found on its website at www.sjto.gov.on.ca/hrto/.

13I am not seized.