Starostenko v. InterContinental Yorkville Hotel, 2010 HRTO 1742

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrei Starostenko

Applicant

-and-

InterContinental Yorkville Hotel, Rick Mak, Erin Elkin, Thomsina Reilly, Mathew Fraser, Barbara Young, and Edward Rama

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: August 24, 2010

Citation: 2010 HRTO 1742

Indexed as: Starostenko v. InterContinental Yorkville Hotel

1This is an Application filed on July 16, 2010 under section 34 of Part IV 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 names the corporate respondent and personal respondents. The corporate respondent has advised that it is correctly named InterContinental Yorkville Hotel and the style of cause has been amended accordingly.

2This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

3The applicant indicated in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and enclosed a copy of the grievance filed on his behalf by his union, the United Steelworkers of America, Local 9466 (the “union”).

4On July 30, 2010, the Tribunal issued a Notice of Intent to Defer the Application because of the ongoing grievance. The respondents submit that the Application should be deferred because there is an ongoing grievance proceeding dealing with the same issues as the issues raised in the Application. The applicant agrees that the issues raised in the Application are the same as those raised in the grievance procedure. He does not agree that consideration of his Application should be deferred. He indicates that he has little confidence that the grievance proceeding will satisfactorily deal with the issues raised in the grievance.

5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

6The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

7The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

8In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The respondents have provided documents to show that the grievance proceeded to arbitration on March 2, 2010 and additional hearing dates have been scheduled on November 24, 2010 and January 19 and 26, 2011.

9I am satisfied that the concerns the applicant raises about his union and the arbitrator do not justify a departure from the Tribunal’s normal approach. The matter is still live and the grievance process has not concluded. If the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

10The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. The respondents’ request that the personal respondents be removed will be dealt with by the Tribunal if the Application is brought back on.