Vyas v. Peel District School Board, 2012 HRTO 1722

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ashvin Vyas

Applicant

-and-

Peel District School Board

Respondent

-and-

Canadian Union of Public Employees, Local 2544

Intervenor

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: September 11, 2012

Citation: 2012 HRTO 1722

Indexed as: Vyas v. Peel District School Board

APPEARANCES

Ashvin Vyas, Applicant

Self-represented

Peel District School Board, Respondent

Roy Filion, Counsel

Canadian Union of Public Employees, Local 2544, Intervenor

Paul O’Ryan, 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 with respect to employment because of race, colour, ancestry, place of origin, ethnic origin, creed, sex, family status and age. The purpose of this Interim Decision is to consider the Request to Intervene made by the applicant’s union, the Canadian Union of Public Employees, Local 2544 (the “union”), and to deal with the issue of whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of another related proceeding.

REQUEST TO INTERVENE

2The applicant alleges the respondent denied the applicant opportunities for advancement and promotion in his employment with the respondent.

3The union is the bargaining agent for employees in the applicant’s workplace. The Tribunal, therefore, gave notice of the Application to the union. The union filed a Request to Intervene on July 30, 2012. Neither the applicant nor the respondent responded to the Request to Intervene and the time for doing so has passed. The union submits that, as the bargaining agent for the applicant and the other employees in the bargaining unit, it has an interest in the proceeding and must be in a position to protect the interests of all members and ensure the proper application of the terms and conditions of the collective agreement with the respondent.

4The union seeks to intervene in accordance with Rules 11.2 and 11.3 of the Tribunal’s Rules of Procedure. The union represents the applicant in the ongoing grievances arising out of the facts that give rise to this Application. It has a significant interest in the outcome of the Application, including the remedial orders requested by the applicant. The union’s request to intervene is granted. Given the Tribunal’s decision to defer this Application, the extent and the nature of the union’s participation in the proceeding can be determined when and if the matter is brought back before the Tribunal.

REQUEST TO DEFER

5The applicant indicates in the Application that the facts of the Application are part of union grievance proceedings that are still in progress.

6The respondent submitted that most of the allegations contained in the Application are untimely and the allegations that are timely are for the most part subject to two grievances filed pursuant to the collective agreement with the union. The respondent submitted that the grievance have reached step 2 of the grievance procedure, but have yet to proceed to the final step or referred to arbitration. The respondent submitted that the Tribunal should exercise its discretion to defer the timely aspects of the Application, pursuant to section 45 of the Code.

7The applicant submitted that he understands that there is an overlap between the issues in the Application and the ongoing grievance. He submitted, however, that the union informed him that the grievances have proceeded to Step 3, contrary to the respondent’s assertion. Accordingly, he submitted that there is confusion regarding the grievance process and he “is forced to believe” that neither the respondent nor the union have taken the appropriate steps to address the grievances. The applicant cited Gomez v. Grand River Foods, 2011 HRTO 2106, in which the Tribunal declined to defer an Application where there was evidence suggesting that the union was not pursuing the applicant’s grievances.

8The 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.

9The 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).

10The 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.

11In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievances. I am satisfied that the concerns the applicant raises about the Union’s position on his grievance do not justify a departure from the Tribunal’s normal approach. The matters are still live and the grievance process has not concluded. The fact that the union informed the applicant that the grievances proceeded to Step 3 does not indicate that the union has decided not to pursue them. It is not yet apparent whether or not the applicant’s grievance will be referred to arbitration. However, if the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

12The Application will therefore be deferred pending the completion of the grievance process.

13The 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. The issue of timeliness may be addressed when and if the matter is brought back before the Tribunal.