Chinedu Egwuenu v. Toronto Catholic District School Board, Adrian Della Morra, Bob Dubniak and Linda Moynagh, 2008 HRTO 358

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chinedu Egwuenu

Applicant

-and-

Toronto Catholic District School Board, Adrian Della Morra, Bob Dubniak and Linda Moynagh

Respondents

INTERIM DECISION

Adjudicator: David Muir Date: December 4, 2008 Citation: 2008 HRTO 358 Indexed as: Egwuenu v. Toronto (Catholic District School Board)

1This is an Application received August 27, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Mediation was scheduled for November 3, 2008. The Commission complaint which gives rise to this Application was filed on June 9, 2008.

2In a prior Interim Decision (2008 HRTO 123) the Tribunal ordered submissions from the parties on the question whether or not the Application should be deferred pending the outcome of a grievance arbitration.

3The Tribunal has now received detailed written submissions from the applicant and the respondents on the deferral issues.

4I have considered the parties' submissions and am satisfied that my decision can be made based on the written material filed.

5The Human Rights Complaint form sets out in detail the allegations forming the basis of this Application. In substance the applicant alleges that he has been discriminated in employment on the basis of age, colour, ethnic origin and race when he was not the successful candidate for a job coach position at St. Mary Catholic Secondary School in November 2006.

6The respondents state that the Application ought to deferred in the face of a grievance arbitration. The respondents state that the grievance arbitrator is seized with the ultimate issues in the Application: that the job selection process for the job coach position was flawed with the result that the applicant was wrongfully denied the position. Moreover the arbitrator has the power to interpret and apply the provisions of the Code under s. 48(12) of the Labour Relations Act, 1995 and, given the issues in dispute between the parties, is in the best position to resolve the matter.

7The applicant does not dispute that prior to filing the Human Rights Complaint he filed a grievance on January 26, 2007 alleging that the respondent School Board had violated the job posting provisions of the collective agreement. In substance the grievance alleges that the applicant was improperly denied a position and he seeks an Order of the arbitrator that he be awarded the position. The arbitration hearing commenced on April 28, 2008 and will continue on January 15, 2009. However, in the Applicant's submission, the matter should not be deferred at this stage because his bargaining agent, CUPE Local 1328 is afraid of the respondent School Board which has resulted in delay in the grievance arbitration proceeding.

8The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

9I am satisfied based on the material filed that the substance of the Human Rights Complaint is for practical purposes largely indistinguishable from the grievance and that the arbitration proceeding, which is underway, should proceed to its conclusion before the Tribunal will deal with whatever might remain of the merits of the Application. Whether or not there was some delay in the start of the arbitration the fact is that it has commenced and is scheduled to resume in January 2009.

9Any party wishing to proceed further with this Application should do so within 60 days of the conclusion of the arbitration in writing to the Registrar-Transition.

10I am not seized of this matter.