Yahya Gulma v. Toronto Transit Commission, 2016 HRTO 778

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yahya Gulma Applicant

-and-

Toronto Transit Commission Respondent

-and-

Canadian Union of Public Employees and its Local 2 Affected Party

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: June 7, 2016

Citation: 2016 HRTO 778

Indexed as: Gulma v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Yahya Gulma, Applicant Self-represented

Toronto Transit Commission, Respondent Patricia Matusiak, Counsel

Introduction

1This is an Application filed on December 3, 2014, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment because of disability. This Interim Decision deals with the issue of whether the Application should be reactivated.

2In a March 6, 2015 Interim Decision, 2015 HRTO 268, the Application was deferred by the Tribunal because of a pending related grievance.

3After the Tribunal received the applicant’s response to its request for an update on the status of the grievance, it advised on December 16, 2015 that the Application would remain deferred.

4On May 4, 2016, the applicant filed a Form 10 Request for an Order During Proceedings (“Form 10 request”) requesting reactivation of the Application. On May 25, 2016, the respondent filed a Form 11 Response to a Request for an Order.

5In support of his Form 10 request, the applicant sent a copy of a March 21, 2016 e-mail from the union to him in which the union advised the applicant that it voted unanimously at its March 17, 2016 meeting not to refer his grievance to arbitration.

6The respondent submits the union has not advised it that it will not proceed to arbitration, and in fact it and the union continue to try and resolve the grievance. However, the respondent does not object to the Application being reactivated, but will rely on any settlement of the grievance in these proceedings.

ANALYSIS

7In this case, the Application was deferred because the applicant’s grievance was referred to arbitration, and there was substantial overlap between the issues in the grievance and in the Application. Because grievance arbitrators have the power and 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, it was appropriate to defer the Application in the face of the outstanding grievance to avoid any duplication of proceedings and contradictory findings of fact (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

8At this stage, however, it appears that the matter is not going to be referred to arbitration. As such, there is no further potential for duplication of proceedings or contradictory findings.

order

9The applicant’s request to reactivate the Application is granted.

10I am not seized of this matter.