Yohanathan Kanapathipillai v. Specialty Care and Venus Inocencio, 2011 HRTO 633

Human Rights Tribunal of Ontario

BETWEEN:

Yohanathan Kanapathipillai Applicant

• and -

Specialty Care and Venus Inocencio Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: March 31, 2011 Citation: 2011 HRTO 633 Indexed as: Kanapathipillai v. Specialty Care

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code") on October 13, 2010, alleging discrimination with respect to employment on the basis of race, colour and place of origin.

2Pursuant to an Interim Decision 2011 HRTO 492, the Tribunal directed the parties to file written submissions with respect to the issue of deferral because the applicant's materials indicated that the applicant's union, Ontario Federation of Health Care Workers - LIUNA Local 1110, represents him with respect to a grievance regarding the termination of his employment.

3On March 23, 2011, the respondents filed submissions supporting deferral of the Application pending the resolution of the applicant's grievance. The respondents confirm that the applicant has a grievance regarding matters related to the allegations contained in this Application. The respondents submit that the parties are in the midst of mediation-arbitration.

4The applicant did not file submissions with respect to the issue of deferral.

REQUEST TO DEFER

5The Tribunal will generally defer an application where there is an on-going grievance under a collective agreement based on the same facts and human rights issues. See Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970 at para. 5. 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 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. 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.

6Based on the materials filed with the Tribunal, it appears that there is a grievance related to the issues raised in the Application and that this outstanding grievance is presently in the mediation-arbitration process.

7Given the possibility of concurrent proceedings and inconsistent findings of fact and law, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application in these circumstances

8The Tribunal orders the deferral of the Application pending the conclusion of the outstanding grievance. Where 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).

9I am not seized of this matter.