Andrew Jayashankar v. Hilton Toronto Hotel and Kiran Panikar, 2013 HRTO 910

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Jayashankar Applicant

-and-

Hilton Toronto Hotel and Kiran Panikar Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: May 27, 2013 Citation: 2013 HRTO 910 Indexed as: Jayashankar v. Hilton Hotel Toronto

WRITTEN SUBMISSIONS

Andrew Jayashankar, Applicant Monica Goyal, Counsel

Hilton Toronto Hotel, Respondent Michelle A. Alton, Counsel

Kiran Panikar, Respondent Self-represented

Unite Here Local 75, Affected Party Jorge Hurtado, Counsel

V.I., Proposed Respondent Self-represented

1The applicant filed an Application on October 22, 2012 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") alleging discrimination and reprisal with respect to employment on the basis of place of origin, ethnic origin and age.

2The Application narrative alleges that the personal respondent subjected the applicant to offensive remarks regarding the applicant's ethnicity and age. It is also alleged that a friend of the personal respondent ("V.I.") falsely accused the applicant of a sexual assault for which the respondent employer suspended the applicant for 5 days. The Application alleges that the sexual assault allegations were a form of reprisal because the applicant raised concerns with the respondent employer regarding the personal respondent's alleged discriminatory treatment. The Application narrative also notes that the applicant filed a grievance regarding this matter.

3The respondents filed Responses on December 10, 2012 denying all allegations.

PROCEDURAL BACKGROUND

4After the Application was delivered by the Tribunal and prior to receipt of any Responses, the applicant filed on November 18, 2012 a Request for an Order during Proceedings ("RFOP") seeking to add the ground of disability and again alleges reprisal. The applicant alleges that the respondent employer prevented his receipt of sick benefits for stress leave when the respondent employer informed the insurer that the applicant's stress was related to his suspension and not a disability.

5On December 10, 2013, the respondent employer filed a response opposing the applicant's request to add the disability-related claims. In refuting the disability-related allegations, the respondent employer noted that the applicant had, in May 2012, filed a duty of fair representation complaint ("DFR complaint") against his union.

6On December 10, 2012, the applicant's union, UNITE HERE Local 75, filed a request to intervene in this Application. The union noted that the personal respondent is a shop steward for the union and the applicant has an outstanding DFR complaint before the Ontario Labour Relations Board ("OLRB"). The union indicates that the allegations in the DFR complaint involve the same concerns as raised in the Application. The union also noted that the respondent employer is an intervenor in the DFR complaint.

7On December 12, 2012, the applicant filed a second RFOP seeking to add the union as a respondent party to the Application alleging that the union is supporting the personal respondent and refusing to take the applicant's grievance to arbitration. The applicant contends that the union's support of the personal respondent's alleged racist behaviour is contrary to the Code.

8The union filed a response on December 24, 2012, denying the applicant's allegations and asserting that it would be an abuse of process to permit the applicant to litigate the same issues that are currently before the OLRB.

9The respondent employer filed a response on December 28, 2012 indicating that it takes no position with respect to applicant's request to add the union.

10On February 2, 2013, the applicant filed a Reply reiterating his claims that the respondent employer and the union are supporting the personal respondent's alleged discriminatory behaviour.

11On March 20, 2013, the applicant filed a third RFOP requesting to add V.I. as a respondent party. The applicant alleges that V.I., as a friend of the personal respondent, made false accusations of sexual assault as retaliation for the applicant's complaint against the personal respondent. The RFOP confirms that the applicant filed a grievance regarding this matter.

12On March 20, 2013, the applicant also filed a request to expedite the Application, which was refused by the Tribunal on March 25, 2013.

13On March 25, 2013, the Tribunal issued a Case Assessment Direction ("CAD") directing the parties and the union to file submissions with respect to the issue of deferral and whether or not the Application should be deferred pending the conclusion of the DFR complaint

14The respondents, and the proposed respondent, V.I., filed submissions on April 4, 2013 objecting to V.I. being added as a party to the Application.

15The parties have also filed with the Tribunal further submissions with respect to their respective positions on the various preliminary matters. The respondent employer's most recent correspondence raises the issue of potential mediation to assist the parties to resolve or address some or all of the issues.

PARTIES' SUBMISSIONS REGARDING DEFERRAL

16The applicant filed submissions on April 5, 2013 addressing the issue of deferral. The applicant submits that, while there is some overlap, the DFR complaint and the Application derive from different sets of facts, raise different questions of law and have different remedies available. The applicant submits deferral of the Tribunal process would be detrimental to his human rights case because the respondents have allegedly pressured witnesses and deferral would allow the respondents more time to continue to pressure witnesses. The applicant notes that he remains off work and that deferral of the Tribunal process would prolong his absence because he is afraid to return to the workplace without having the human rights issues addressed.

17The respondent employer filed submissions on April 22, 2013 supporting deferral. The respondent employer indicates that many of the allegations made in the applicant's DFR complaint significantly overlap with or are identical to the allegations made in the human rights Application. The respondent employer notes that the applicant has raised in both matters the allegations of race and age discrimination, as well as the concerns with respect to the denial of sick benefits and the alleged sexual assault. The respondent employer points out that the applicant is attempting to add the union as a respondent party to the Application.

18The union filed submissions supporting deferral on the basis that both proceedings involve the same parties and the same allegations of discriminatory conduct by the union with respect to workplace issues. The union notes the OLRB pre-hearing is scheduled for July 2013. The union submits that it would be unfair to require it to simultaneously defend itself in two concurrent hearings.

DEFERRAL

19Pursuant to Rule 14.1 of the Tribunal's Rules of Procedure, the Tribunal has the discretion to defer consideration of an application. Deferral of an application ensures that legal proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

20The Tribunal will generally defer an application where the parties are engaged in other legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to facts that parallel the Application: see Aganeh Estate v. Mental Health Care Penetanguishene, 2011 HRTO 2280.

21While deferral is not automatic simply because the parties are engaged in another proceeding, deferral does not require that the other proceeding deal with precisely the same legal issues as raised in the human rights application. See Christianson v. College of Physicians and Surgeons of Ontario, 2009 HRTO 438; Deli v. Toronto Police Services Board, 2009 HRTO 330 and Ogbonna-Ehirim v. Holiday Inn & Suites Mississauga, 2011 HRTO 1750.

22Some 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.

23Although there are different legal frameworks in the two proceedings, it is clear that allegations in both matters are intertwined and that the evidence will likely overlap with respect to the applicant's concerns regarding the conduct of the personal respondent and his friend, the respondent employer's handling of certain situations and the actions or inactions of the union as a proposed respondent. The DFR matter is scheduled for a pre-hearing in approximately two months. As such, in light of the advanced stage of the DFR proceeding, the factual similarity of the two matters, the applicant's request to add respondent parties to this Application who are involved or implicated in the DFR case (in particular, the union), I find that it is appropriate to defer this Application pending the completion of the OLRB process.

ORDER

24The Tribunal orders the deferral of the Application pending the conclusion of the OLRB proceeding. The outstanding RFOPs, including the request to amend the Application, and add proposed parties and/or an intervenor, will be addressed at a later stage of the Tribunal process if this matter is reactivated.

25Where 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).

26If a party files a request to reactivate this Application, along with its reactivation submissions, the party is required to provide up to date information with respect the applicant's grievances and indicate whether or not the party is amenable to mediation. Parties responding to any reactivation request must also confirm whether or not the party is amenable to mediation.

27I am not seized.