Grievances (Human Rights)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-22
CLNP Page ID:	2374
Page Categories:	Human Rights
Citation:	Grievances (Human Rights), CLNP 2374, <https://rvt.link/bo>, retrieved on 2024-11-22
Editor:	MKent
Last Updated:	2024/04/16

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Melville v. Toronto (City), 2012 HRTO 22 (CanLII)

[11] The applicant argues that labour arbitration should be treated differently from other types of proceedings because the applicant is not formally a party and the union has the final decision about the manner in which the matter moves forward. However, the Tribunal may defer to various processes to which the applicant is not a formal party, including criminal proceedings against a respondent (see, for example, Miller v. Bernard, 2010 HRTO 1488) and professional discipline (see, for example Shakir v. Kidron Valley Rehab, 2010 HRTO 1310). Moreover, this argument fails to recognize that in general, the law gives exclusive jurisdiction to labour arbitrators where a matter arises expressly or inferentially from the collective agreement, including rights under the Canadian Charter of Rights and Freedoms: Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929. The Code departs from those principles by allowing a unionized applicant to file a Tribunal application. Against this background, I fail to see how it is unjust that an applicant is permitted to pursue only one avenue at a time.

[12] I also do not agree with the applicant that it would be appropriate for the Tribunal to essentially supervise the grievance process by setting timelines for meeting particular steps in the process. There are many factors affecting the speed at which matters move through a grievance and arbitration process including the number of grievances outstanding in a workplace, the availability of mediators and arbitrators selected by the parties, and the parties’ resources, to name just a few. The Tribunal would have neither the knowledge in a particular case nor the expertise to do so. What the applicant asks would be directly contrary to the Supreme Court’s statement in Figliola, at para. 38, that there should be “territorial respect among neighbouring tribunals” and that human rights tribunals may not engage in “lateral adjudicative poaching” of tribunals with concurrent jurisdiction.

[13] This does not leave applicants unable to pursue their rights if the union does not move the grievance forward. The Tribunal has refused to defer where a grievance process was not moving forward in a timely manner: see Monck v. Ford Motor Company of Canada, 2009 HRTO 861 and Gomez v. Grand River Foods, 2011 HRTO 2106. It is also, in my view, open to an applicant whose case has been deferred to file a Request for Order During Proceedings requesting reactivation on the basis that a grievance process has been unreasonably slow or to ask for reactivation on the basis that the grievor has withdrawn or attempted to withdraw the grievance entirely.