Amadeo Melendez v. Charles Pringle et al., 2010 HRTO 146

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amadeo Melendez

Applicant

-and-

Charles Pringle, Andrew Boszin, Cindy O’Reilly, Lorraine Burton, Charlotte Monardo and Rosanne Rinella

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: January 22, 2009

Citation: 2010 HRTO 146

Indexed as: Melendez v. Pringle

1This is an Application filed on October 14, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination on the basis of race, place of origin and reprisal or threat of reprisal in employment.

2It appears from the Application (Form 1) that the applicant intended to include his employer, the City of Toronto (the “City”), as an organizational respondent, however, the City was not included as an organizational respondent in Tribunal correspondence. The City appears to be a proper respondent to this Application. If the applicant disputes this he is to advise the Tribunal and the other parties in writing within five days of the date of this Interim Decision. If the applicant does not object or fails to respond as directed, the City will be added as a respondent to the Application and the style of cause amended.

3In his Application, the applicant indicated that the facts of the Application are part of a union grievance that is still in progress and requested that the Tribunal defer the Application until the grievance proceeding is completed. He attached a copy of a grievance dated October 20, 2008, regarding the denial of a promotion.

4On November 25, 2009, the Tribunal issued a Notice of Applicant Request to Defer with the Application. On December 8, 2009, the applicant’s union, the Canadian Union of Public Employees, Local 79 (the “union”), and the individual respondent, Charlotte Monardo, responded that they had no objection to the applicant’s request to defer. On December 9, 2009, the City and the remaining individual respondents also indicated that they had no objection to the request to defer.

5On December 15, 2009, the applicant advised the Tribunal, the parties, and the union that, as a result of the arbitration on December 2, 2009, and the union’s refusal to take his grievances concerning demotion and racial discrimination in front of the arbitrator on that date, he would like the Tribunal to proceed with his Application.

6On December 18, 2009, the respondents responded that they believe deferral is appropriate. They submit that the applicant has several separate outstanding grievances, many of which contain allegations the same as, or related to, his Application. In particular, they submit that a grievance alleging harassment and discrimination is still outstanding and contains allegations similar to the ones made in the Application, including incidents regarding his work performance and allegations of sabotage.

7The respondents submit that a job competition grievance was the subject matter of discussions on December 2, 2009 and it has not been finally determined. The City believes it is still pending a hearing before the union’s Grievance Committee and the subject matter of this grievance also forms part of the Application. The respondents submit that another grievance currently outstanding alleges that the applicant was unjustly given a letter of expectation.

8On January 4, 2010, the applicant replied, submitting among other things that he has waited almost two years for all the grievances to be dealt with. He submits he was told that all of the grievances would be heard on December 2, 2009 but were not.

9Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the 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. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The 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 the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

10Pursuant to Rule 14.2, where the Tribunal intends to defer consideration of an application, it will first give the parties, any identified trade union or occupational or professional organization and any identified affected persons, an opportunity to make submissions. Within two weeks of the date of this Interim Decision, the applicant’s union may make written submissions regarding whether the Tribunal should defer consideration of this Application until such time as the grievances are resolved. Whether or not the union makes submissions, pursuant to Rule 1.7(p) of the Tribunal’s Rules, the union is directed to advise the Tribunal and the parties as to the status of the applicant’s grievances, within two weeks of the date of this Interim Decision.

11I am not seized.