Dessye v. MUC Shelter Corporation c.o.b. Sojourn House, 2009 HRTO 1908

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tesfaye Dessye

Applicant

-and-

MUC Shelter Corporation c.o.b. Sojourn House,

Debbie Hill-Corrigan, Rita Kohli and Kevin Lee

Respondents

INTERIM DECISION

Adjudicator: Judith Hinchman

Date: November 9, 2009

Citation: 2009 HRTO 1908

Indexed as: Dessye v. MUC Shelter Corporation c.o.b. Sojourn House

INTRODUCTION

1This is an Application dated June 30, 2009 made under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint (the “Complaint”) was filed with the Ontario Human Rights Commission on March 28, 2007. The purpose of this Interim Decision is to decide a request to dismiss or, in the alternative, to defer this Application.

BACKGROUND

2The applicant was employed as a Housing Counsellor with the corporate respondent, MUC Shelter Corporation c.o.b. Sojourn House (“Sojourn House”), a refugee shelter in the City of Toronto. At the relevant time, the respondent Debbie Hill- Corrigan was the Sojourn House Executive Director, respondent Rita Kohli was the Program Director, and respondent Kevin Lee was a member of the Board of Directors serving on its Executive Board and Personnel Committee. On October 3, 2006, the applicant’s employment was terminated with cause.

3As of June 1998, the Canadian Union of Public Employees, Local 3798-04 (“CUPE”) was certified as the exclusive bargaining agent for all employees of the corporate respondent except the Business Manager, Shelter Manager, and persons above the rank of Shelter Manager. There is a collective agreement in place between Sojourn House and CUPE. The applicant was covered by the agreement.

4Prior to filing his Complaint in March of 2007, the applicant filed three grievances in April and October of 2006 that the respondents claim relate to the very same allegations later raised in his Complaint and that are the subject matter of this Application. The grievances were unresolved through the grievance process and were collectively referred to arbitration (the “Arbitration”). The parties agreed on the appointment of arbitrator Russell Goodfellow. Hearings commenced in mid 2007 and ended in the spring of 2009. At the time of respondents’ request to dismiss or defer, the award of the arbitrator had not been released.

5Concurrent with the Arbitration hearings, the applicant applied for Employment Insurance. His application was denied and, following a series of appeals, the Board of Referees ultimately dismissed the applicant’s appeal in March 2007. The respondents assert that the substance of those hearings also dealt with the same matter that was both before the arbitrator and is the subject of this Application.

6The applicant filed his Complaint on March 28, 2007 alleging discrimination in his employment on the basis of Breach of Settlement and Reprisal.

7The respondents request that this Application be dismissed because two other proceedings have dealt with the substance of the Application. Alternatively, the respondents request that the Application be deferred until the Arbitration award is released.

DECISION

Section 45.1 Dismissal

8Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

9It is helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the Application. With regard to the second part, the Tribunal may consider whether the Application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding.

10The Board of Referees hearing determined whether the applicant’s employment was terminated “as a result of his own misconduct.” It does not address the breach of settlement allegation or consider the alleged reprisal. I am not satisfied it is a proceeding which appropriately dealt with the issues in dispute in this Application within the meaning of s. 45.1.

11Although the issues listed in the grievances that went to Arbitration appear similar, there has been no final determination. Until a final decision is issued, I am not satisfied that the Arbitration proceeding can be said to have dealt with the substance of this Application within the meaning of s. 45.1.

12The Request to dismiss based on s. 45.1 is refused.

Deferral of Application

13Pursuant to Rule 16 of the Tribunal’s Rules of Procedure for Transitional Applications (the “Transitional Rules”), this Tribunal may defer consideration of an application, on such terms as it may determine. The Tribunal has said that it will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. See Krieger v. Toronto Police Service Board, 2008 HRTO 270.

14Transition Rule 16.3 states that the Tribunal will not defer an application without first giving all the parties an opportunity to make submissions.

15The applicant is therefore directed to deliver to the respondents and file with the Tribunal his submissions on the request to defer on or before November 23, 2009. If the applicant fails to make any submissions, the Tribunal will determine the request based on the material before it.

16The respondents may respond to the applicant’s submissions by delivering their written submissions to the applicant and filing them with the Tribunal by November 30, 2009.