Mohammad Bhatti v. Oakville United Taxi Ltd., 2011 HRTO 450

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohammad Bhatti

Applicant

-and-

Oakville United Taxi Ltd., Hira Gill and Surbrinder Sandhu

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: March 3, 2011

Citation: 2011 HRTO 450

Indexed as: Bhatti v. Oakville United Taxi

1The applicant filed this Application on November 16, 2010 under Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment on the basis of ancestry, place of origin, citizenship and ethnic origin (collectively “ethnicity”).

2The applicant alleges that the respondents treated him differently because of his ethnicity and that he was dismissed because of his ethnicity and union activities. The applicant alleges that employees of the same ethnicity as the respondents received preferential treatment. The applicant alleges that his employment was terminated shortly after an unsuccessful union vote which took place on November 23, 2009. The applicant alleges that employees of the same ethnicity as the respondents were not dismissed despite participating in the same union activities he engaged in. The applicant also alleges that approximately two months later he was invited to re-apply for employment and was promised a position, however, ultimately he was denied the job by the respondents’ executive committee.

3The respondents filed a Response on January 19, 2011, denying that they discriminated against the applicant. In their Response, the respondents request early dismissal of the Application on the basis that an unfair labour practices application alleging mistreatment based on racial favourtism and union activities before the Ontario Labour Relations Board (“OLRB”) appropriately dealt with the substance of the Application. In the alternative, the respondents argue that this Application should be deferred until the conclusion of the OLRB application. The respondents also argue that the Application is statute-barred because of delay. Lastly, the respondents request that the personal respondents be removed as parties to the Application.

4On February 11, 2011, the Tribunal issued a Notice of Intent to Dismiss and Defer to the applicant and directed the applicant to file his submissions in response to the Requests by February 25, 2011.

5The applicant did not file submissions as directed and the time for doing so has elapsed.

DELAY

6Section 34 of the Code provides:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

7The Application alleges that the applicant’s employment was terminated shortly after November 23, 2009 and then approximately two months later the applicant was discriminatorily denied re-employment.

8Based on the chronology of events, it appears Application satisfies the requirements of section 34 of the Code as the last alleged event took place in early 2010 and the Application was filed in November 2010. As such, the respondents’ Request to dismiss because of delay is denied.

SECTION 45.1

9Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application. [emphasis added]

10The respondents’ submissions expressly acknowledge that the OLRB proceeding has not yet been completed. The respondents’ request under section 45.1 is denied as premature as no other proceeding has dealt with the substance of the Application.

DEFERRAL

11The Tribunal will generally defer an application where there is an on-going legal proceeding based on the same facts and issues. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

12The respondents point out that the applicant is the primary applicant in OLRB application. The applicant does not dispute the respondents’ submissions that the unfair labour practice application is based on many of the same facts and issues as the Application. It is noteworthy that the applicant appended the OLRB application to the present Application. Both claims set out similar allegations with respect to unfair dismissal.

13In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the OLRB proceeding.

14Where 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).

15Given the decision to defer, it is not necessary to deal with the respondents’ request to remove the personal respondents at this time. This issue can be addressed if and when the Application is reactivated.

16I am not seized of this matter.