HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ty Vo
Applicant
-and-
Windsor Casino Limited and Joe Moore
Respondents
INTERIM DECISION
Adjudicator: Kaye Joachim
Indexed as: Vo v. Windsor Casino
WRITTEN SUBMISSIONS BY
Ty Vo, Applicant ) no submissions
Windsor Casino Limited and ) Marilee Marcotte, Counsel Joe Moore, Respondents )
1This Interim Decision addresses the respondents’ request for the dismissal of the Application pursuant to s. 45.1 of the Ontario Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”) on the basis that the substance of the Application has been appropriately dealt with by the grievance and arbitration procedure. .
2The Application in this matter was filed on May 28, 2009. It relates to a complaint filed with the Ontario Human Rights Commission on February 26, 2006 alleging discrimination in employment on the basis of ethnic origin and race.
3The applicant self-identified as Vietnamese. He alleged that his shift was given to a less senior “White” employee and, when he complained, he was fired. Following reinstatement he was fired again.
4The respondent agrees that the applicant was fired initially on September 29, 2004. However, the applicant, the union and the corporate respondent signed Minutes of Settlement on November 12, 2004 agreeing to his reinstatement.
5The pre-November 12, 2004 allegations of discrimination have been dealt with by settlement and it would be an abuse of process for the applicant to pursue these allegations: Dunn v Sault Ste. Marie (City), 2008 HRTO 149. Accordingly, they do not form part of the subject matter of the present Application.
6On June 3, 2005 the applicant was terminated for alleged misconduct. The union filed a grievance, but subsequently signed Minutes of Settlement on October 4, 2005. The applicant refused to sign these Minutes of settlement and has not accepted the moneys negotiated by the union on his behalf.
7The respondents assert that the grievance procedure resulting in a settlement has appropriately dealt with the substance of the allegation that the June 2005 dismissal was contrary to the Code.
8I do not accept that a union-employer settlement of a grievance, over the objection of the applicant, means that the disputed termination has been appropriately dealt with within the meaning of s.45.1. This is a very different circumstance than the situation in Virgin v. Dollar 2009 HRTO 899 where the applicant was a signatory to the minutes of settlement which resolved the grievance.
9The Registrar-Transition will schedule mediation in this Application in due course.
Dated at Toronto this 9th day of February, 2010.
“Signed By”
Kaye Joachim
Alternate Chair