Saha v. Garda Inc., 2011 HRTO 948

Human Rights Tribunal of Ontario

B E T W E E N:

Ashish Saha

Applicant

-and-

Garda Inc. and Jean-Sebestien Racine

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: May 17, 2011

Citation: 2011 HRTO 948

Indexed as: Saha v. Garda Inc.

1This is an Application filed on March 4, 2011 pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and encloses a copy of two grievances filed on his behalf by his union, Teamsters, Local Union No. 419 (the “union”).

3The respondents have requested that the Tribunal defer the Application pending the completion of the grievance proceeding. In support of its request, it has filed correspondence confirming the respondents and the union’s agreement to a sole arbitrator to hear the grievances. The applicant opposes deferral and states that he will undertake to withdraw his grievances so that his Application can move forward. He states that the issues in the grievances will not deal with his allegations of discrimination or violations of the Code.

4The 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.

5The 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).

6The Supreme Court has 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.

7In this case, the applicant acknowledges that the grievances are based on the same facts raised in the Application. Although he disputes that the grievances will deal with human rights issues, in fact, one of them alleges differential treatment based on the applicant’s membership in a “visible minority group.” In these circumstances, the Tribunal sees no reason to depart from its usual approach to defer consideration of the Application.

8The Application will therefore be deferred pending the completion of the grievance process. If the grievances are withdrawn the applicant may request, on notice to the respondent, that the Application be re-activated. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which the parties may request re-activation of the Application after the conclusion of the grievance process.