Wallace Lim v. Lorraine Siu, Luviminda (Luvi) Pangasanhan and Yuen-Yee Chow, 2010 HRTO 279

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wallace Lim

Applicant

-and-

Lorraine Siu, Luviminda (Luvi) Pangasanhan and Yuen-Yee Chow

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: February 9, 2010

Citation: 2010 HRTO 279

Indexed as: Lim v. Siu

APPEARANCES

Wallace Lim, Applicant ) on his own behalf

Lorraine Siu, Respondent ) Mario Sepe, counsel

Canadian Union of Public Employees, )

Local 79 ) Gail E. Misra, counsel

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) on March 10, 2009 in which he alleges discrimination in the context of employment on the basis of disability, race, ethnic origin, and sexual orientation. The applicant also alleges reprisal or threat of reprisal.

2The respondents filed a Response on August 27, 2009 in which they ask the Tribunal to defer the Application because of an ongoing union grievance proceeding. The respondents identify the Canadian Union of Public Employees, Local 79 (“Union”), as an affected party.

3The applicant filed a Reply on October 7, 2009 opposing the request to defer.

4In an Interim Decision dated November 5, 2009, 2009 HRTO 1885, the Tribunal invited submissions from the parties and the Union regarding the status of the grievance proceeding. The Union and the respondent filed submissions in response to the Interim Decision. The applicant sent submissions to the Tribunal however, although he was instructed to do so, he did not file a Form 23 in regards to these submissions nor has he otherwise confirmed that the submissions were provided to the respondents and Union. The Tribunal cannot consider submissions that have not been shared with all of the parties and, accordingly, the Tribunal has not considered the Reply in rendering this Interim Decision.

5The respondents have advised the Tribunal that the grievances have not been heard because they were filed contrary to the process required by the collective agreement. The respondents have advised the applicant that before filing a grievance, he must first request a dispute resolution meeting to address his concerns. As I understand the respondents’ submissions, the grievances are also effectively in abeyance during the applicant’s substantiated absence from work. The respondents and the Union have stated that they will set up a grievance meeting within 48 hours of the applicant’s return to work to resolve any outstanding matters.

6Based on the submissions before me, it remains difficult for me to determine the status of the grievance. On the one hand, the respondents state that the grievances have not been heard because of a procedural irregularity. On the other hand, the respondents and the Union suggest that, despite the procedural irregularity, they can proceed to a grievance meeting, but only once the applicant returns to work.

7Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure (“Rules”).

8Rule 14.1 of the Rules states:

The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

9The 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.

10Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer the Application, having regard to the status of each proceeding and the steps that have been taken to pursue them.

11While the subject matters of the grievance and the Application may overlap, the material before me suggests that it is unlikely that the grievance and the Application will be heard concurrently. The status of the grievance is such that no hearing dates have been set nor will they be set unless the applicant some further steps, either by returning to work or by filing the grievances in accordance with the process set out in the collective agreement.

12In the circumstances, I am not satisfied that it would be appropriate to defer the Application. The respondents’ request to defer the Application pending the determination of the grievance is dismissed.

13The Union should advise the Tribunal and the parties within two weeks of the date of this Interim Decision whether it intends to seek leave to intervene in the Application.

14I am not seized of this matter.