Domarchuk v. Metro Ontario Inc., 2016 HRTO 848

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janet Domarchuk

Applicant

-and-

Metro Ontario Inc. and United Food & Commercial Workers Canada

Respondents

INTERIM DECISION

Adjudicator: Jennifer Khurana

Date: June 23, 2016

Citation: 2016 HRTO 848

Indexed as: Domarchuk v. Metro Ontario Inc.

WRITTEN SUBMISSIONS

Janet Domarchuk, Applicant

James Melnick, Counsel

Metro Ontario Inc., Respondent

Christian Vernon, Counsel

United Food and Commercial Workers Canada, Respondent

Roberto Henriquez, Counsel

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant indicates in the Application that the facts of the Application are part of a union grievance that is still in progress. The respondent employer enclosed a copy of the grievance filed by United Food and Commercial Workers Canada (the “Union”) on the applicant’s behalf.

3The applicant opposes the deferral and does not want to delay her Application. She acknowledges that the subject matter of her Application as regards her employer is substantially similar to the anticipated issues to be addressed at the arbitration. She submits, however, that her Application should proceed as she has also named the Union as a respondent, and these allegations will not be addressed at the arbitration. The respondents submit that the Application should be deferred on the grounds that the grievance raises the same facts and issues and that it has been referred to arbitration.

4The 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.

5The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and 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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

6The 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 facts and 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.

7In this case, it is apparent that there is substantial overlap between the facts and issues covered by the Application and those referred to in the grievance, both of which allege a failure to accommodate the applicant’s workplace restrictions. I am satisfied that the concerns the applicant raises about the Union’s position on the applicant’s grievance do not justify a departure from the Tribunal’s normal approach. The matter is still live and the grievance process has not concluded. The applicant’s grievance has already been referred to arbitration and is scheduled to be heard on July 5, 2016. However, if the applicant believes, on conclusion of the process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

8The Application will therefore be deferred pending the completion of the grievance process.

9The 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/.