Ramnarine v. Peel Halton Acquired Brain Injury Services, 2011 HRTO 945

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vishnu Ramnarine

Applicant

-and-

Peel Halton Acquired Brain Injury Services

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: May 18, 2011

Citation: 2011 HRTO 945

Indexed as: Ramnarine v. Peel Halton Acquired Brain Injury Services

1This Interim Decision deals with whether to defer this Application pending the outcome of a grievance filed by the applicant.

2The applicant filed this Application on January 13, 2011, alleging discrimination in employment on the basis of race, colour, ancestry, place of origin, citizenship and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). His Application concerns the treatment of him by the respondent up to and including the termination of his employment on November 5, 2010.

3In addition to filing this Application, the applicant also signed a grievance on December 27, 2010 alleging unjust dismissal and harassment during his employment. He is a member of the Ontario Public Service Employees Union, Local 587 (“OPSEU”). The overlap between the Application and the grievance is apparent on the face of the Application. His first line in his answer to question 8 of that document concerning what happened is as follows: “Phabis management team has violated article 6.01 and article 6.02 of the OPSEU Collective Agreement and the Human Rights Code.”

4On March 1, 2011, the Tribunal issued a Notice of Intent to Defer. Both the respondent and the applicant filed submissions in response to that Notice. The respondent supports deferral, while the applicant is opposed.

5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

6The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. 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).

7The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

8In this case, the applicant opposes deferral of his Application because he states that his union president told him that he had not seen an employee from this respondent be re-instated after they were terminated, which indicates to him that his union would not properly represent him. This conclusion is bolstered by his perception that the grievances of other employees facing racism at this worksite were not properly handled because they were not reinstated.

9The respondent supports deferral, although it states that it is taking the position that the grievance is out of time. It advises that the parties have appointed Owen Gray to be the arbitrator. The applicant subsequently sent in correspondence from Mr. Gray confirming that he has scheduled June 2, 2011 for a mediation and January 10, 2012 for arbitration in the event that the matter is not resolved.

10Given the overlap between the two matters and the fact that dates have already been scheduled for the mediation and arbitration of the grievance, the Tribunal is of the view that deferral to the grievance process is appropriate. The Application will be deferred pending the completion of the grievance process.

11The 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.

12I am not seized of this matter.