Bhol v. Coca Cola Enterprise, 2012 HRTO 105

Human Rights Tribunal of Ontario

Between:

Zuber Bhol Applicant

• and -

Coca Cola Enterprise, Iowanna Chis, Cem Erim and Mike LeClair Respondents

Canadian Auto Workers, Local 385 Interested Party

INTERIM DECISION

Adjudicator: Ian R. Mackenzie Date: January 16, 2012 Citation: 2012 HRTO 105 Indexed as: Bhol v. Coca Cola Enterprise

WRITTEN SUBMISSIONS

Zuber Bhol, Applicant ) Self-represented

Coca Cola Enterprise, Iowanna Chis, Cem Erim and Mike LeClair, Respondents ) Mathias Link, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment on the basis of race, ancestry, place of origin, ethnic origin and disability. This Interim Decision addresses a Notice of Intent to Defer the Application pending an arbitration hearing that may deal with the subject-matter of the Application.

2On August 15, 2011, an interim decision was issued by the Tribunal that, among other things, ordered that a Notice of Intent to Defer be issued. The August 15, 2011 interim decision also ordered the applicant to provide the address for the union, so that it could be provided with the Notice. The applicant provided this contact information on November 9, 2011. The parties were provided with a Notice of Intent to Defer on November 14, 2011. The respondents provided submissions. The union did not provide any submissions.

3The applicant filed a grievance against his termination of employment from the corporate respondent on August 4, 2010. The grievance was referred to arbitration by the union on September 22, 2010. The arbitration was scheduled for a hearing on May 20, 2011. The hearing was adjourned and continuation dates of February 2, April 18 and May 18, 2012 have been scheduled.

4The applicant has alleged in his Application that his termination was the final act of discrimination. His Application also refers to other incidents that he alleges are discriminatory on the basis of race, ancestry, place of origin, ethnic origin and disability. In his grievance, the applicant alleges that the termination of his employment was unjust and an act of discrimination and harassment. It appears from the Application that the applicant is relying on the prohibited ground of disability in his allegation that his termination of employment was discriminatory. The applicant is seeking reinstatement and compensation for lost wages in both his Application and grievance.

5The applicant has submitted that the arbitration has nothing to do with the issues relating to the personal respondent Iowanna Chis and may not deal with the issues relating to the personal respondent Cem Erim. From the Application, it appears that he is alleging that these two individuals (supervisors) discriminated against him in comments made to him that are not part of his grievance.

6The respondent submits that deferral is appropriate given that there is a significant overlap between the grievance and the Application both in the subject matter and in the requested remedies.

ANALYSIS AND DECISION

7The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). 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. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

8The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and 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).

9The applicant appears to concede that there is significant overlap between the Application and his grievance, when he states that issues relating to two of the personal respondents will not be addressed by the arbitrator. The necessary implication of this statement is that the arbitrator will deal with his issues relating to the other respondents.

10I have concluded that there is significant overlap between the Application and the grievance. In particular, the allegations relating to discrimination on the basis of disability are identical in both the Application and the grievance.

11I must now consider whether deferral is the most fair, just and expeditious way of proceeding with the Application in the circumstances of this case. The grievance hearing has already commenced and is scheduled to continue on February 2, 2012 and will be the most expeditious way of proceeding. Although the arbitration hearing may not address the allegations of discrimination on the basis of race, ancestry, place of origin and ethnic origin, it is not practical to proceed at this time with only those allegations in the Application that will not be addressed. In addition, the applicant is seeking largely similar remedies in both proceedings. It is therefore fair, just and practical that the Application be deferred.

12The Tribunal orders the deferral of the Application pending the conclusion of the grievance process.

13Where 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).

14I am not seized.