HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Zuber Bhol
Applicant
-and-
Coca Cola Enterprise, Iowanna Chis, Cem Erim and Mike LeClair
Respondents
INTERIM DECISION
Adjudicator: Kathleen Martin
Indexed as: Bhol v. Coca Cola Enterprise
WRITTEN SUBMISSIONS
Zuber Bhol, Applicant
Self-represented
Coca Cola Refreshments Canada, Cem Erim and Mike LeClair, Respondents
Mathias Link, Counsel
Iowanna Chis, Respondent
No one appearing
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on June 16, 2011. The Application is presently deferred pending the conclusion of the grievance process: 2012 HRTO 105. This Interim Decision determines whether the Application should be reactivated.
BACKGROUND
2The Application arises out of the applicant’s employment with the organizational respondent (“Coca Cola”). The individual respondents are former supervisors of the applicant.
3The applicant was employed by Coca Cola from 1986 to August 13, 2010. The applicant alleges that he was discriminated against on the basis of disability, race, ancestry, ethnic origin and place of origin during his employment and in the termination of his employment. Among other things, the applicant alleges that he was subjected to a racist remark by a supervisor, that another supervisor failed to accept that he had an injury and provide him with suitable work and that he was fired. The remedy sought includes wages and overtime since his termination and compensation for pain and suffering.
4The Tribunal did not require the respondent to file a response but instead issued a Notice of Intent to Defer pending the resolution of a union grievance that had been referred to in the Application. In the subsequent Interim Decision addressing the deferral, the Tribunal acknowledged that the arbitration hearing (into the applicant’s termination grievance) may not address the applicant’s allegations based on race and related grounds. Nevertheless, the Tribunal stated that it was not practical to proceed with only those allegations and thus ordered the deferral of the Application pending the grievance process.
5On January 15, 2013, the applicant filed a Request for Order During Proceedings seeking reactivation of the Application. The applicant states that the reasons for the Request is that the “union failed to represent & were not successful in getting a ruling in my favour”. Attached to the Request is the decision of Arbitrator Stephen Raymond dated December 4, 2012 upholding the termination of the applicant’s employment.
6On February 19, 2013, the respondents Coca Cola and Messrs. Erim and LeClair filed a Response to the Request opposing reactivation. In their submissions, the respondents submitted that after filing the Request, the applicant filed a Duty of Fair Representation application at the Ontario Labour Relations Board (the “OLRB Application”) against his union and that it intends to intervene in this proceeding. The respondents submitted that the Application should be deferred pending the conclusion of the proceedings before the OLRB and reserve their right to make further submissions with respect to the Request and to make further submissions with respect to the dismissal of all or part of the Application at a future date.
7A copy of the OLRB Application is attached to the respondents’ submissions. The documentation reflects that the OLRB Application was filed February 11, 2013. In the OLRB Application the applicant alleges that his complaint is about two grievances – the termination grievance and a second grievance which was “not heard”. It appears from the attached documentation that this second grievance relates to one of the incidents in the Tribunal Application where the applicant allegedly reported an injury which was not accepted. In addition, it is apparent from the attached narrative and supporting material, that the applicant relies on many of the same facts and incidents included in the narrative in the Application. As a remedy the applicant identifies reinstatement, back pay, loss of wages and overtime, pain and suffering and “reputation damage”.
8In a Case Assessment Direction dated May 7, 2013, I stated that the Tribunal intended to address the Request in writing and directed the applicant and respondents to make any further written submissions on the Request.
9The applicant filed further submissions. The applicant continues to request that the Application be reactivated citing the impact of the situation on him and his family.
10The respondents Coca Cola and the related individuals submit that the OLRB Application is continuing and that the parties in that proceeding have been unable to reach a voluntary resolution. The respondents reiterate that there is overlap in the factual issues and remedies being sought in both the Application and the OLRB Application. Further, the respondents submit that a finding by the OLRB in favour of the applicant may result in the referral of these matters to arbitration which may result in inconsistent or conflicting findings of fact which will result in serious prejudice to the respondents and constitute an inappropriate use of resources. For these reasons, the respondents maintain that the Application should not be reactivated.
11The respondent Chis has not filed submissions.
DECISION
12The issue before me is whether or not the Application should be reactivated. I am satisfied that the proceeding that was deferred to – the grievance process - has reached its conclusion by the issuance of Arbitrator Raymond’s award. While the applicant has now filed an OLRB Application, this is a different proceeding from the proceeding that this Application was originally deferred to and thus does not justify an appropriate basis on which to deny reactivation.
13Instead, I view the substance of the respondents’ opposition to reactivation as a request to now defer to the new OLRB proceeding. While I have considered the request, in all of the circumstances, I do not find it appropriate to defer.
14The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case.
15Some 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, the type 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.
16I agree with the respondents who opposed reactivation, that there appears to be overlapping facts, and to some degree, overlapping remedial requests in the Application and the OLRB Application: both proceedings relate to incidents arising during the applicant’s employment including his termination and seek compensation for what appear to be similar losses. However, the issues are different. The issue before the OLRB is whether the alleged conduct of the union is a breach of the Labour Relations Act, whereas the issue before the Tribunal is whether the alleged conduct of the applicant’s employer and supervisors is a breach of the Code. In this respect, this case is distinguishable from two of the three cases relied on by the respondents where the union was a named respondent in the Tribunal applications as well as the OLRB proceedings thus there was potential overlap in the legal issues. See Sollitt v. Trillium Lakelands District School Board, 2012 HRTO 1594; and Toop v. Canadian Union of Public Employees, 2009 HRTO 2254.
17I note that in a number of other cases, the Tribunal has declined to defer to an OLRB proceeding in similar circumstances. See Cordes v Thunder Bay Catholic District School Board, 2013 HRTO 652 and the cases cited at para.14.
18Further, while both proceedings are arguably at a similar stage, I am mindful that the Tribunal Application has been filed almost twenty months earlier than the OLRB Application. While I can appreciate the respondents’ concern about resources, in all of the circumstances, given the divergent issues and the original date of the Application, I do not find it appropriate to defer.
19I issue directions to the respondents below regarding the continuation of the Application to file a response. Having regard to the decision of Arbitrator Raymond, it would be appropriate for the respondents to address s. 45.1 in their Response.
ORDERS
20The Tribunal orders:
The Request to reactivate is granted; and
The respondents shall file a full response within 35 days of the date of this Interim Decision;
Dated at Toronto, this 29th day of May, 2013.
“Signed by”
Kathleen Martin
Vice-chair```