Danbrook v. Hilton Toronto Hotel, 2013 HRTO 977

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wesley Danbrook

Applicant

-and-

Hilton Toronto Hotel

Respondent

-and-

UNITE HERE Local 75

Affected Party

INTERIM DECISION

Adjudicator: David Muir

Date: June 3, 2013

Citation: 2013 HRTO 977

Indexed as: Danbrook v. Hilton Toronto Hotel

APPEARANCES

Wesly Danbrook, Applicant

Self-represented

Hilton Toronto Hotel, Respondent(s)

Michelle Alton, Counsel

UNITE HERE Local 75

Jorge Hurtado, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal on the part of the respondents. The applicant alleges that he was suspended and then dismissed from his employment for failing to participate in what he alleges was a cover up of alleged violations of the Code which were or are the subject of another Application before the Tribunal.

2A grievance has been filed related to the applicant’s suspension and termination and is scheduled for hearing on July 5, 2013. In Interim Decision 2013 811 I directed the parties to deliver and file submissions on whether or not the Application should be deferred pending the conclusion of the arbitration proceeding. I also directed that the parties deliver and file submissions on the applicant’s request that his bargaining agent, the affected party, be added as a party respondent.

3The applicant opposes the deferral of the Application. The respondent and the affected party argue that it should be deferred. The applicant argues that his allegation of reprisal will not be dealt with in the arbitration and that it will deal with his termination as a labour relations matter and not a violation of the Code. The applicant also takes some issue with the manner in which the affected party has handled his grievance to date. I note as well that the applicant has sought to add the affected party as a party respondent, but the allegations in that respect are somewhat vague and appear to be primarily an allegation that some union officials thought his chances of success at arbitration were less than 50% and they seemed reluctant to pursue the grievance.

4The 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 generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed 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 (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

5The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same legal or factual issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

6In this case, it is apparent that there is substantial overlap between the facts and issues covered by the Application and those referred to in the grievance. I am satisfied that the concerns the applicant raises about the affected party’s position on his grievance do not justify a departure from the Tribunal’s normal approach. The matter is still live and the grievance process is about to begin.

7The Application will therefore be deferred pending the completion of the grievance process.

8The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. The Union’s Request to Intervene will be dealt with by the Tribunal if the Application is brought back on.

9The other matters raised by the parties may be canvassed at the appropriate time.

10I am not seized of this case.