HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Osmand Bangura

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services and Nancy Liston

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: January 4, 2011

Citation: 2011 HRTO 23

Indexed as: Bangura v. Ontario (Community and Social Services)

1The applicant filed this Application on June 23, 2010, under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”), alleging discrimination in employment on the basis of race, colour, ancestry, place of origin, ethnic origin, sex and marital status. The applicant advises that an application before the Public Service Grievance Board (“PSGB”) has also been filed, but that the application did not contain the allegations of discrimination and harassment found in his Application to this Tribunal.

2This Interim Decision addresses the respondent’s request to defer the Application to the arbitration proceeding. In addition to this Request, the respondents also made a Request for Order During Proceedings (“RFOP”) to remove the individual respondent as a party to this proceeding. Similarly, the applicant filed a RFOP to amend his Application to include the ground of reprisal. In light of my decision to grant the respondents’ request to defer, it is unnecessary to deal with either of these other requests at this juncture. The Tribunal can address these issues, if appropriate, should the Application be re-activated following the conclusion of the arbitration process.

DECISION AND ANALYSIS

3The applicant’s employment was terminated on February 22, 2010. On May 5, 2010, he filed an application with the PSGB in which he states that his employer did not have cause to terminate his employment and that the investigation that led to his termination was flawed. In the introductory paragraph to the PSGB application, the applicant refers to the fact that he is a visible minority, but otherwise does not allege discrimination or harassment.

4In their Response, the respondents ask that the matter be deferred pending the conclusion of the arbitration process. They note that at the time of the filing of the Response, a mediation date of October 2010 had been set in the PSGB application. In the applicant’s Reply to the respondents’ Response, he indicates that the parties were in the process of scheduling a continuation of the mediation in February 2011, and a hearing (should it be necessary) in May 2011.

5The applicant is strongly opposed to deferral, indicating that although the factual basis for both the PSGB application and the Application to this Tribunal is the same, he specifically chose not to address the human rights issues in that forum. He also asserts that the factual issue of whether or not the respondents had cause to terminate his employment, which will be addressed by the PSGB, is distinct from whether he experienced differential treatment.

6The Tribunal will generally defer an application where there is an ongoing grievance 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. 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).

7In both the PSGB application and the Application to this Tribunal, the applicant challenges the validity of his suspension and ultimate termination of this employment. I am unable to accept the applicant’s assertion that there is not a significant overlap in the factual basis for the two proceedings.

8Even if the applicant’s theory of the case is different in the two proceedings, the respondents have indicated that their defence to both proceedings is that they terminated the applicant’s employment for cause. Hence, the respondents will be put to the burden of asserting the same defence, possibly concurrently, in two separate proceedings, with the possibility that the two tribunals come to inconsistent findings of fact.

9In light of substantial overlap between the facts and issues covered by the two matters and the fact that the PSGB process has already commenced, I am satisfied that deferral is appropriate. If the applicant believes, on conclusion of the arbitration 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 Application will therefore be deferred pending the conclusion of the grievance process. The 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.

11I am not seized of this matter.