HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joginder Sharma
Applicant
-and-
Wheeltronic Limited (Snap on Tools) and Abaid Rahman
Respondents
INTERIM decision
Adjudicator: Brian Cook
Indexed as: Sharma v. Wheeltronic
1This Interim Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The Application alleges discrimination on the grounds of disability and reprisal.
2A Response was received on behalf of the corporate respondent and the personal respondent. The respondents submit that the Application should be dismissed or deferred because:
- there is an ongoing grievance dealing with essentially the same issues as the issues that are raised in the Application;
- the Application does not establish a prima facie case;
- the Application is frivolous and vexatious.
3In the alternative, the respondents submit that the personal respondent should be removed as a respondent. In the further alternative, the respondents submit that consideration of the Application should be deferred until the grievance has been resolved.
4The applicant has not filed a Reply to the Response.
The Request that the Application be Dismissed
5According to the information filed with the Response, the applicant has filed a grievance that deals with issues similar to those raised in the Application. The union is the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 9042 (“the union”). The union has filed a Request for Appointment of Single Arbitrator under section 49 (Expedited Arbitration) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Schedule A, as amended.
6Under section 45.1 of the Code, the Tribunal may dismiss an Application if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application. In this case, while a grievance has been filed, it appears that an arbitration is currently pending. There is no indication that the grievance has been resolved or otherwise has dealt with the substance of the Application. While it is possible that a proceeding related to the grievance will appropriately deal with the substance of the Application, it appears that at present there is no other proceeding that has appropriately dealt with the Application and there is accordingly no basis to dismiss the Application under section 45.1.
7The respondents submit that the Application should be dismissed because the applicant has not put forward a prima facie case. A prima facie case is one which covers the allegations made and which, if they are believed, is sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent. The test for establishing a prima facie case is not high: see Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, at para. 6 and Jagait v. IN TECH Risk Management, 2009 HRTO 779, at paras. 18 and 19.
8In this case, the applicant alleges that he was discriminated against on the basis of his disability and the fact that he claimed benefits under the Workplace Safety and Insurance Act. He alleges that the discrimination included a refusal to continue to provide employment that accommodated his disability and reducing his earnings. As noted, at this point, the issue is not whether these allegations are true, but rather whether, if they are true, they could justify a finding in the applicant's favour in the absence of an answer from the respondent. In my view, the applicant has met this test and has established a prima facie case.
9The respondents ask the Tribunal to dismiss the Application on the grounds that it is frivolous and vexatious. Prior to amendments which came into effect on June 30, 2008, the Code permitted the Ontario Human Rights Commission to decide to not deal with complaints on the basis that they were frivolous, vexatious or made in bad faith. These provisions of the Code are no longer applicable.
The Request that Consideration of the Application be Deferred
10The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. The facts and issues raised by this Application are part of a grievance process that is still in progress. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.
11The applicant did not identify any particular circumstances that would cause the Tribunal to depart from its normal approach.
12In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the grievance.
13If the applicant wishes to proceed with the application following conclusion of the grievance, he must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the proceeding (Rules 14.3 and 14.4).
Removal of the personal respondent
14The personal respondent asks that he be removed as a party on the grounds that he was acting in the course of his employment at all relevant times and that the corporate respondent would accordingly be liable for his conduct. The personal respondent further asserts that there is no compelling reason to continue the proceedings against him based on the facts alleged because the facts alleged do not constitute a prima facie case. This latter argument has been addressed above.
15In my view, it would be premature to remove the personal respondent at this time. The allegations in the Application are concerned with the actions of the personal respondent. This matter can be reviewed again if the Application is revived following the conclusion of the grievance.
ORDER
16The Application is deferred pending completion of the ongoing grievance procedure.
17I am not seized of this matter.
Dated at Toronto, this 30th day of November, 2009.
“Signed by”
Brian Cook
Vice-chair