HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Romeo T. Villanueva Applicant
-and-
City of Toronto Respondent
-and-
Canadian Union of Public Employees, Local 79 Affected Party
INTERIM DECISION
Adjudicator: David Muir Date: March 9, 2015 Citation: 2015 HRTO 279 Indexed as: Villanueva v. Toronto (City)
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour ancestry, place of origin and ethnic origin.
2On December 15, 2014, the applicant requested that the hearing of this Application be deferred pending the conclusion of a grievance proceeding commenced on his behalf by the affected party.
3On January 16, 2015, the Tribunal issued a Notice of Intent to Defer this Application pursuant to s. 45 of the Code pending the conclusion of a grievance arbitration related to some of the same facts and issues as are raised in the Application.
4The respondent supports deferral.
5The applicant now opposes deferral on the basis that the respondent has indicated that it will deal with counsel for the trade union in respect of the grievance and not the applicant’s counsel.
6There is no indication in the Tribunal’s file that the applicant has retained counsel.
7Having reviewed the grievance provided by the Applicant and the Application, I find that the facts and issues are indistinguishable.
8The 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.
9However 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).
10In any case where the parties are already engaged in a concurrent legal proceeding in which they are raising all or some of the same 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.
11In this case the issues raised in the two proceedings are identical. The basis for the applicant’s change of mind about deferral is somewhat unclear however if it is that respondent’s counsel will not deal with the applicant’s representative about the grievance procedure this is not a basis to not defer to a proceeding where identical issues are being adjudicated. In my view the facts and issues being raised in the two proceedings are the same and accordingly are sufficient to support deferral – one of the important reasons to defer being to avoid different conclusions about the facts in two concurrent proceedings.
12The Application will therefore be deferred pending the completion of the grievance process.
13The 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 other matters raised by the respondent and the affected party will be dealt with by the Tribunal if the Application is brought back on.
14I am not seized of this case.
Dated at Toronto, this 9^th^ day of March, 2015.
“Signed by”
________________________________
David Muir Vice-chair