Alejandro Juani v. The Corporation of the City of Mississauga, 2010 HRTO 1490

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alejandro Juani

Applicant

-and-

The Corporation of the City of Mississauga

Respondent

-and-

Canadian Union of Public Employees

Intervenor

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: July 8, 2010

Citation: 2010 HRTO 1490

Indexed as: Juani v. Mississauga (City)

INTRODUCTION

1The purpose of this Interim Decision is to determine whether (a) the union’s Request to Intervene should be granted, and (b) it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of a grievance proceeding.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on January 8, 2010, which alleged that the respondents harassed and discriminated against him and subjected him to reprisal with respect to employment. The respondent filed a Response on May 25, 2010, which denied the allegations of harassment, discrimination and reprisal. The applicant filed a Reply and the applicant’s union, Canadian Union of Public Employees and its Local 66, filed a Request to Intervene on June 18, 2010.

REQUEST TO INTERVENE

3Rule 11.1 of the Tribunal’s Rules of Procedure provides that the Tribunal may allow a person or organization to intervene in any case at any time on such terms as the Tribunal may determine, and the Tribunal will determine the extent to which an intervenor will be permitted to participate in a proceeding. The applicant filed a Response that consents to the Request. The respondent did not file a Response, and the time for doing so has now passed.

4The union’s Request to Intervene is granted. The Application raises issues that may affect the union, and none of the other parties oppose the Request. The extent of the union’s participation in any future proceedings will be determined by the Vice-chair or Member who presides over those proceedings.

DEFERRAL

5All the parties acknowledge that the facts of the Application are part of a union grievance that is still in progress. The respondent requests that the Tribunal defer consideration of the Application. The applicant and the union both consent to the request.

6Rule 14.1 of the Tribunal’s Rules of Procedure states that it may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will 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. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

7In my view, deferral is the most fair, just and expeditious way of proceeding with the Application. There is clearly overlap between the facts and issues raised in the grievance and those raised in the Application to the Tribunal, and the labour arbitrator has the authority to interpret and apply the Code to address any allegations of harassment, discrimination and reprisal. Furthermore, the grievance process is still in progress, and none of the parties have identified any particular circumstance which would cause the Tribunal to depart from its normal approach.

8Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance proceeding.

9Where a party wishes to proceed with an Application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

10I am not seized of this matter.