Jatinder Khaira v. Liquor Control Board of Ontario, 2012 HRTO 2035

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jatinder Khaira Applicant

-and-

Liquor Control Board of Ontario Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: October 25, 2012 Citation: 2012 HRTO 2035 Indexed as: Khaira v. Liquor Control Board of Ontario

WRITTEN SUBMISSIONS

Liquor Control Board of Ontario, Respondent Adrienne Couto, Counsel

1This Application was filed on August 2, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to employment on the grounds of race, colour and ethnic origin.

2The applicant alleges that he has been harassed and subjected to differential treatment and unfair discipline compared to non-racialized employees. The applicant’s narrative notes that he raised his concerns regarding the incidents that are alleged in the Application through various workplace complaints and grievances and the applicant provided copies of two grievances dated September 2, 2011 and September 15, 2011.

3On August 23, 2012, the Tribunal issued a Notice of Intent to Defer (“NOID”) on the basis that it may be appropriate for the Tribunal to defer the Application pending the conclusion of the applicant’s grievances. The NOID invited the parties and the applicant’s union, as the affected party, to file submissions in response to the NOID.

4On September 20, 2012, the respondent filed submissions supporting deferral of the Application pending the resolution of the applicant’s grievances. The respondent indicates that the applicant’s two grievances were, in January 2012, referred to arbitration before the Grievance Settlement Board (“GBS”).

5Neither applicant nor the applicant’s union filed submissions with respect to whether or not the Application should be deferred pending the completion of the grievance process.

DEFERRAL

6The 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.

7Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

8Having reviewed the Application, the documentary material and the respondent’s submissions, I conclude that there is significant overlap in the facts and issues raised in the Application and the applicant’s grievances. The applicant’s narrative clearly indicates that the applicant’s concerns and the precipitating incidents are the subject matter of the two grievances. The grievances expressly allege harassment and unfair discipline. The grievances were commenced prior to this Application and the respondent confirms that the grievances have been formally referred to arbitration, although the GSB has yet to schedule a hearing.

9The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is an on-going grievance under a collective agreement based on the same facts and issues as raised in the Application. In so doing, the Tribunal has relied on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, wherein the Supreme Court of Canada confirmed 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. I see no reason to depart from this approach.

10As such, the most fair, just and expeditious approach is to defer consideration of this Application pending the completion of the grievance/arbitration process.

ORDER

11The Application is deferred until the completion of the grievance/arbitration process.

12Where 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).

13I am not seized