Majhi v. Fairmont Royal York Hotel, 2013 HRTO 292

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Martin Majhi Applicant

-and-

Fairmont Royal York Hotel Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: February 21, 2013 Citation: 2013 HRTO 292 Indexed as: Majhi v. Fairmont Royal York Hotel

WRITTEN SUBMISSIONS

Martin Majhi, Applicant Mohsin Bhuiyan, Representative

Fairmont Royal York Hotel, Respondent James G. Knight, Counsel

UNITE HERE, Affected Party Jorge V. Hurtado, Counsel

1The applicant filed this Application on November 14, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, (the "Code") as amended, alleging discrimination with respect to employment on the basis of race, colour, place of origin, ethnic origin and disability.

2The applicant has been employed by the respondent Fairmont Royal York Hotel in the Stewarding Department as a Pot Washer since April 1999. In May 2010, the applicant underwent quadruple bypass surgery and as a result has limited lifting restrictions which prevent him from performing the duties of a Pot Washer. He claims that the respondent has failed to accommodate him in another position consistent with his restrictions.

3The applicant's Application was originally filed also as against his union, UNITE HERE Local 75. In his Application, the applicant alleged that the union failed to advance his grievance in accordance with the collective agreement. Along with his Application, the applicant provided a copy of his grievance against the respondent employer regarding an alleged failure to accommodate his disability.

4In an Interim Decision, 2012 HRTO 954, the Tribunal dismissed the Application as against the union for having no reasonable prospect of success for failing to demonstrate a link between the applicant's disability and the union's alleged conduct.

5The respondent filed a Response on January 10, 2012. In the Response, the respondent requested that the Tribunal defer the Application pending the conclusion of the grievance filed by the applicant.

6By way of Case Assessment Direction dated October 29, 2012, the Tribunal required the parties and the union, as an affected party, to file submissions regarding the respondent's request to defer and, in particular, to provide up to date information with respect to the applicant's grievance.

7The Tribunal has now received written submissions from parties and the union, as well as the applicant's Reply and supporting documentation.

DEFERRAL

8The 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.

9Some 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.

10The 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.

11I see no basis to depart from the Tribunal's regular approach to defer an application where the application overlaps with an active grievance.

12The respondent and the union confirm that the grievance process is active and that, as of November 2012, the parties and the union were engaged in discussions regarding the applicant's medical restrictions and duties in furtherance of previous Minutes of Settlement entered into by the parties. The respondent also points out that the applicant filed an Ontario Labour Relations Board application against the union regarding the settlement and that a decision in that matter was pending. The applicant notes that the parties and the union met on November 23, 2012 to address issues related to the grievance settlement and accommodation.

13Based on the parties' and the union's submissions, it appears that the grievance process remains on-going. The applicant has an outstanding grievance which relies on facts and raises issues which overlap with the allegations set out in the Application. In both matters, the applicant alleges failure to accommodate his disability-related needs. The parties have entered into a settlement process which is well underway.

14In the interest of efficiency and to avoid concurrent proceedings, the Tribunal will defer this Application pending the completion of the grievance process.

ORDERS

15The Application is deferred pending the conclusion of the grievance process.

16Where 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).

17I am not seized of this matter.