Mollinedo v. Fairmont Royal York, 2014 HRTO 1225

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Byron Mollinedo

Applicant

-and-

Fairmont Royal York and Scott Pittman

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: August 15, 2014

Citation: 2014 HRTO 1225

Indexed as: Mollinedo v. Fairmont Royal York

1This Application alleges discrimination with respect to employment because of race, colour, place of origin, and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The respondents filed a joint Response. In it, they indicate that the facts of the Application are part of a union grievance proceeding that is still in progress, and enclose a copy of the grievance filed on the applicant’s behalf by his union, UNITE HERE Local 75 (the “union”).

3The Tribunal sent the Response to the applicant and directed him to file submissions about whether or not the Tribunal should defer the Application in light of the grievance that was filed.

4The applicant filed a Reply, but did not make any submissions pertaining to the deferral issue.

5The 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. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

6The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. 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).

7The 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 human rights 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.

8In this case, it is apparent that there is overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The matter is still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant’s grievance will be referred to arbitration. But if the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

9The Application will therefore be deferred pending the completion of the grievance process.

10The 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, and that this must be filed no later than 60 days after the conclusion of the other proceeding.

11I am not seized with this matter.