HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chau Quach

Applicant

-and-

HMS Host International Canada and Sean Dipchand

Respondents

-and-

United Food and Commercial Workers Union, Local 1000A

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: May 4, 2012

Citation: 2012 HRTO 892

Indexed as: Quach v. HMS Host International Canada

WRITTEN SUBMISSIONS

Chau Quach, Applicant ) Richard Miller, Counsel

HMS Host International Canada and ) Katherine Pollock, Counsel

Sean Dipchand, Respondents )

United Food and Commercial Workers ) Jeffery Andrew, Counsel

Union, Local 1000A, Intervenor )

1The applicant filed this Application on January 4, 2012, under section 34 of the Ontario 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, ethnic origin and age.

2On February 15, 2012, the applicant’s union, United Food and Commercial Workers Union, Local 1000A (“Union”) filed a Request to Intervene. The Union notes that it filed a number of grievances on behalf of the applicant during her employment with the corporate respondent and that it has initiated a grievance with respect to the applicant’s employment termination. The Union submits that it has an interest in the determination of this Application and seeks intervenor status to participate in any mediation and/or hearing before the Tribunal.

3On March 5, 2012, the respondents filed a Response, which notes that the allegations raised in the Application have been the subject of a number of grievances. The respondents submit that the grievance process is best suited to deal with all the issues and they ask the Tribunal to defer the Application.

4The applicant filed a Reply on April 10, 2012, and submits that the status of the applicant’s termination grievance and whether or not the Union will be proceeding with it remains uncertain. The applicant submits that given this uncertainty the Tribunal should not defer the Application.

REQUEST TO INTERVENE

5As the Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

6Based on the information provided by the parties and the submissions of the Union, I am satisfied that the Union has an interest in the outcome of the Application. As such, and in accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by the union, the Union’s Request to Intervene is granted.

REQUEST TO DEFER

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.

8The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is an ongoing grievance under a collective agreement based on the same facts and issues as raised in the Application.

9The Union submitted that it intends to advance the applicant’s termination grievance, including the human rights allegations, through the normal grievance process. The Union indicated that its review process meeting, where it determines whether or not the termination grievance has prospects of success and should proceed to arbitration, was scheduled to occur on February 24, 2012. In addition, the Union’s submissions indicate that the applicant is appealing its decision to not pursue her April 2011 grievance of a five-day suspension and the applicant’s appeal has yet to be heard.

10At the time of the Union’s submissions were filed, the Union had not yet decided whether the termination grievance would proceed to arbitration. The Tribunal does not have any further information with respect to the status of the applicant’s appeal and the termination grievance. As such, the Tribunal needs clarification regarding the status of these matters and whether either grievance will proceed to arbitration.

ORDER

11The Tribunal orders that the Union is granted intervenor status and the style of cause is amended to reflect the same.

12The Tribunal orders that, within 14 days of the date of this Interim Decision, the parties and the Union write to the Tribunal, copied to each other, providing information as to the up-to-date status of any outstanding grievances.

13I am not seized of this matter.

Dated at Toronto, this 4th day of May, 2012.