HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gidey Haylu
Applicant
-and-
Stationnement Métropolitain Inc. and Hospitality and Service Trades Union Local 261
Respondents
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Haylu v. Stationnement Métropolitain
WRITTEN SUBMISSIONS
Gidey Haylu, Applicant
Self-represented
Stationnement Métropolitain Inc., Respondent
Chris Kiakas, Representative
Hospitality and Service Trades Union Local 261, Respondent
Clinton Cowan, Representative
Introduction
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 on the basis of race, place of origin and disability. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of the applicant’s grievance.
2The Application alleges that the applicant’s employer, Stationnement Métropolitain Inc. (the “corporate respondent”) discriminated against the applicant when it terminated his employment. The Application also names the applicant’s bargaining agent, the Hospitality and Service Trades Union Local 261 (the “union”), as a respondent. The Application alleges that the union failed to act diligently and on a timely basis in advancing the applicant’s grievance filed on September 14, 2011, grieving the corporate respondent’s decision to terminate the applicant’s employment.
3On October 11, 2012, the Tribunal issued a Notice of Intent to Defer in which it indicated that it might be appropriate for the Tribunal to defer consideration of the Application pending the resolution of the applicant’s grievance. The applicant, the union and the corporate respondent have all filed submissions in response to the Notice of Intent to Defer.
4The applicant submits that the Application should not be deferred. He submits that it has been over a year since he filed his grievance and that on multiple occasions he has been in contact with both the corporate respondent and the union to advance consideration of his grievance but to no effect. He submits that the corporate respondent and union have had ample time to resolve the grievance and have not and that the applicant does not anticipate that they will take action in the future if the Application is deferred.
5The union submits that the Application should be deferred. It provides an extensive history of the applicant’s employment, the events that gave rise to the termination of his employment and the steps taken to date in addressing the applicant’s grievance. According to the union, the applicant has been trying to collect certain information under an Access to Information request to support his grievance and that this effort has taken and continues to take time. The union indicates that this information is required before the grievance proceeds to arbitration. It appears the union and the corporate respondent had agreed to defer going to arbitration until this information is obtained. The union submits that it has played an appropriate supportive role to the applicant. It submits that the applicant will be able to resolve his differences with the corporate respondent through the grievance/arbitration process.
6The corporate respondent provides some information on why the corporate respondent is of the view that the termination of the applicant’s employment was justified and why it did not violate the applicant’s rights under the Code. It does not address whether the Application should be deferred or not.
DECISION
7Pursuant to the Tribunal’s Rules of Procedure, the 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).
8Deferral 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. Some of the factors that may be 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 and the type of remedies available in the other proceeding
9I am satisfied that the Tribunal should defer further consideration of the Application pending the outcome of the applicant’s grievance which appears will proceed to arbitration. The Tribunal’s general practice is to defer applications when there is an ongoing grievance under a collective agreement based on the same facts and issues as raised in an application, as is the case here. Grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights
10The applicant has expressed concerns about the delay in his grievance process. This clearly has been frustrating for the applicant but it does appear to be related to an unusual need to gather information from another source. However, proceeding with the Application now would lead to two concurrent proceedings which is not appropriate in my view.
11I also recognize that the applicant has named his union as a respondent and that his current grievance will not necessarily address his concerns that they have discriminated against him. However, it is clear from the narrative of his Application that his principal concerns are with the actions of the corporate respondent that are also the subject of his grievance. Under these circumstances it is appropriate to defer his Application pending the outcome of his grievance.
12The Tribunal directs the parties’ attention to Rule 14 of the Tribunal’s Rules of Procedure which sets out the procedure for requesting the Tribunal to proceed with an application that has been deferred pending the conclusion of another proceeding.
13I am not seized of this matter
Dated at Toronto, this 4^th^ day of December, 2012.
“Signed by”
Eric Whist
Vice-chair