Hesham Minawi v. Toronto Star Newspapers Limited, 2015 HRTO 140

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: January 30, 2015
Citation: 2015 HRTO 140
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 denying the applicant’s request to reactivate his deferred Application, as well as his requests to amend his Application and for an expedited hearing before the Tribunal.

2The circumstances leading to the decision to defer are outlined in the Tribunal’s Interim Decisions 2014 HRTO 914 and 2014 HRTO 1103. The Application was deferred to permit an orderly management of the proceedings initiated by the applicant before both the Tribunal and the Ontario Labour Relations Board (“OLRB”).

3In summary the history of these proceedings is as follows:

• The 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.
• The 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.
• The 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.

4Consistent with the approach of the OLRB, the Tribunal then deferred consideration of the Application to enable the applicant, as a first step, to launch an internal appeal of the union’s decision not to proceed with his grievance. The applicant’s appeal was eventually considered by the union on September 25, 2014 and it was denied.

5The applicant has a right to further appeal this decision to the International Executive Board of the union, but he cannot exercise this right until the next quadrennial international conference of the union. That does not take place until 2016. In light of the amount of time that the union’s internal appeal process will take, the union has offered to agree to the applicant’s request to reactivate if he withdraws the internal appeal of the union’s decision not to bring forward his grievance.

6The applicant refuses to do so, but he argues that his Application should be reactivated nonetheless. In effect, his argument is that the union is trying to force him to choose between advancing the proceedings before the OLRB and this Tribunal on the one hand and following through with the internal appeal on the other.

7Both respondents oppose the request to reactivate because, they say, nothing has changed since the Tribunal’s original decision to defer. The deferral was based on the need for an orderly management of the proceedings before the Tribunal and the OLRB, the OLRB proceedings are still pending and the applicant has not sought to relist the OLRB proceedings for hearing.

8I agree with the respondents. The allegations in this Application occurred in a unionised workplace and it makes sense for the OLRB and/or a grievance arbitrator to first deal with the issues in the labour relations proceedings, given the high degree of overlap between the matters before the OLRB and the Tribunal. I understand why the applicant would like to see his Application (and the OLRB proceedings) dealt with rapidly, but he has chosen to give priority to pursuing the internal appeal of the union’s decision not to bring his grievance forward, even though that will not be finally disposed of until 2016. In light of this choice, and given the continued importance of avoiding the risk of conflicting determinations by the Tribunal and the OLRB, I determine that the request to reactivate should be denied.

9Having decided that the Application should not be reactivated, it is not necessary to deal with the applicant’s requests to amend or expedite the hearing of his Application. They are denied at this time and the applicant can raise those issues again once the Application is reactivated.

order

10The request to reactivate this Application is denied.

11The parties’ attention is again 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.

12The requests to amend the Application and to expedite the Application are denied.