Burai v. 2095527 Ontario Ltd., 2014 HRTO 197

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janos Burai

Applicant

-and-

2095527 Ontario Ltd. o/a Embassy Suites Hotel by Hilton Niagara Falls Fallsview

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: February 14, 2014

Citation: 2014 HRTO 197

Indexed as: Burai v. 2095527 Ontario Ltd.

APPEARANCES

Janos Burai, Applicant

Self-represented

Embassy Hotel, Respondent(s)

Joe Conte, Representative

1This is an Application filed on June 24, 2013 under section 34 of Part IV of 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 respondent indicates in the Response that the facts of the Application are part of a union grievance proceeding that is still in progress, and encloses a copy of the grievance filed on his behalf by his union, United Food and Commercial Workers Canada, Local (the “union”).

3In the Response, the respondent notes that the applicant was absent from work on a medical leave for an extended period and eventually requested, through the union, to be transferred to another department. The respondent states that it could not accommodate the applicant’s request and the union filed a grievance on his behalf. The grievance, which was included with the Response, alleges that the respondent failed to accommodate the applicant’s disability and seeks as a remedy transfer to a department within his skills and abilities. In his Reply, the applicant states that he does not believe his union represented him properly and reiterates his position set out in the Application that the employer should have transferred him to another position.

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 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.

5The 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).

6The 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.

7In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance, as both relate to the applicant’s in ability to perform his position of breakfast because of his physical limitations and his request to be transferred to another position. There is no indication that the union is not pursuing the grievance I am satisfied that the concerns the applicant raises about the union’s communication with him do not justify a departure from the Tribunal’s normal approach. 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.

8The Application will therefore be deferred pending the completion of the grievance process.

9The 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.