Doganay v. Community Living Toronto, 2017 HRTO 1050

Human Rights Tribunal of Ontario

B E T W E E N:

Engin Doganay Applicant

-and-

Community Living Toronto Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: August 14, 2017 Citation: 2017 HRTO 1050 Indexed as: Doganay v. Community Living Toronto

WRITTEN SUBMISSIONS

Engin Doganay, Applicant Self-represented

Community Living Toronto, Respondent Cheryl Pooran, Counsel

1This Interim Decision addresses whether the Tribunal should defer consideration of the Application pending the conclusion of the grievance arbitration proceeding in this case.

2The applicant filed an Application alleging discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Among other things, the applicant alleged that the respondent harassed him and imposed discipline on him for discriminatory reasons.

3In addition to filing this Application, the applicant filed a number of grievances with his union. The parties held a mediation into the grievances. The mediation was unsuccessful and the applicant’s union has referred his grievances to arbitration.

4The respondent has requested that the Tribunal defer consideration of the Application pending the conclusion of the grievance arbitration proceeding.

5The applicant opposed deferral on the basis that the grievances do not cover all of the allegations in the Application and they are focused on workplace issues rather than human rights issues.

FINDINGS

6The 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 generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. The reason for this is that grievance arbitrators have, not only the power, but also the responsibility to enforce human rights and other employment-related statutes as if they were part of a collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

7In this case, I find it appropriate for the Tribunal to defer consideration of the Application pending the conclusion of the grievance arbitration proceeding. Although the grievances may not cover all of the allegations in the Application, there is considerable overlap between the grievances and the Application such that permitting them to proceed at the same time could lead to inconsistent results on the facts and the law.

8If the applicant believes that the grievance arbitration proceeding did not appropriately deal with the substance of his Application, he may seek to re-activate his deferred Application. However, the applicant should take note that, under s. 45.1 of the Code, the Tribunal has the power to dismiss Applications if the substance of an Application has been appropriately dealt with in another proceeding.

9Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure address how an application may be brought back before the Tribunal following conclusion of another proceeding. It should be noted that, a party wishing to proceed with an application must file a Request for Order During Proceedings (Form 10) no later than 60 days after the conclusion of the other proceeding. The Tribunal’s Rules of Procedure and Forms can be found on its website at www.sjto.gov.on.ca/hrto/.

ORDER

10For the above reasons, the Tribunal defers consideration of this Application pending the conclusion of the grievance arbitration proceeding in this case.