Hesham Minawi v. Toronto Star Newspapers Limited, 2014 HRTO 914

Human Rights Tribunal of Ontario

B E T W E E N:

Hesham Minawi Applicant

-and-

Toronto Star Newspapers Limited, GCC/IBT – Graphic Communications Conference/International Brotherhood of Teamsters Union, Local 100-M Respondents

INTERIM DECISION

Adjudicator: Paul Aterman
Date: June 23, 2014
Citation: 2014 HRTO 914
Indexed as: Minawi v. Toronto Star Newspapers Limited

WRITTEN SUBMISSIONS

Hesham Minawi, Applicant Self-represented

Toronto Star Newspapers Limited, Respondent Julie O’Donnell, Counsel

GCC/IBT – Graphic Communications Conference/International Brotherhood of Teamsters Union, Local 100-M, Respondent Mark Wright, Counsel

1This Interim Decision explains why the Tribunal is deferring consideration of this Application, which alleges discrimination with respect to employment because of race, colour, ancestry, place of origin, ethnic origin and creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Reprisal is also alleged.

2The applicant works for the respondent Toronto Star Newspapers Limited and is a member of the respondent union. He alleges that his failure to succeed in a job competition for a higher paying position was tainted by discrimination on the grounds cited above.

3The applicant’s union filed a grievance on his behalf. The allegations in the grievance and this Application are identical. The executive of the union local later decided not to proceed with the grievance. The applicant filed an application with the Ontario Labour Relations Board (the “Board”) alleging that the union breached its duty of fair representation, contrary to s.74 of the Labour Relations Act, 1995, S.O. 1995, c.1. He also filed a second application with the Board alleging that the respondent employer engaged in an unfair labour practice. Both applications allege the same violations of the Code.

4The Board consolidated the two applications by treating the second one as an amendment of the first application. It convened a case conference on June 2, 2014 and the parties agreed to adjourn the application in order for the applicant to use the union’s internal appeal procedure to contest the decision not to proceed with his grievance.

5The Tribunal asked the parties for submissions on whether it should defer consideration of this Application until the other proceedings are resolved. Both respondents argue for deferral. They say that, in addition to the application before the Board, there is a possibility that the grievance will be resurrected. They argue that the subject matter of this Application, the grievance and the Board proceeding are identical and deferral would avoid the risk of conflicting findings of fact by the Tribunal and either the Board or an arbitrator (in the event that the grievance goes to arbitration).

6The applicant argues that this Application should not be deferred because the subject matter of the Application is different from that of the other proceedings. He does not explain how he comes to this conclusion.

7The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). 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 allegations of discrimination brought before it.

8In this case there is a substantial overlap of facts and issues between the proceedings before the Board and the ones raised in this Application. The Board has the authority to address any allegations of discrimination the applicant may raise in those proceedings. In the event that the Board proceedings are resolved because the union has decided to refer the grievance to arbitration, then an arbitrator would have the authority to address the alleged Code violations.

9This overlap of facts and issues, along with failure of the applicant to explain how the subject matter of this Application is different from the subject matter of the other proceedings, are reasons to exercise discretion in favour of deferral.

order

10The Application is deferred pending resolution of the proceedings before the Ontario Labour Relations Board. If those proceedings are resolved because the pending grievance is allowed to go forward in the grievance procedure, then the Application is deferred pending resolution of the grievance procedure.

11The parties’ attention is directed to Tribunal Rules 14.3 and 14.4, which outline the procedure by which a party may seek to bring the Application back on after the conclusion of the other proceedings.