Human Rights Tribunal of Ontario
B E T W E E N:
Andrew Jayashankar Applicant
-and-
145 Richmond Street West Limited Partnership o/a Hilton Toronto Respondent
-and-
UNITE HERE Local 75 Affected Party
DECISION
Adjudicator: Mark Hart Date: November 8, 2017 Citation: 2017 HRTO 1474 Indexed as: Jayashankar v. 145 Richmond Street West Limited Partnership
APPEARANCES
Andrew Jayashankar, Applicant Olyani Parsons, Counsel
145 Richmond Street West Limited Partnership o/a Hilton Toronto, Respondent Matthew Curtis, Counsel
UNITE HERE Local 75, Affected Party Jorge Hurtado, Counsel
1This is an Application filed on December 21, 2015 alleging reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant is employed as a station chef in the culinary department of the Hilton Toronto. In 2014, the parties entered into a settlement agreement in relation to a previous human rights application that the applicant had filed. The applicant alleges that following his return to work in the fall of 2014, he was subjected to adverse treatment by various other supervisors and employees of the respondent. In particular, the last alleged incident of reprisal relates to a three day suspension that was issued to the applicant on August 7, 2015 for giving a cup of ice cream to a co-worker’s child.
3The applicant’s union, UNITE HERE Local 75 (the “Union”), filed a grievance regarding the three day suspension on August 10, 2015 (the “Grievance”). As the grievance process was ongoing at the time the Application was filed, the Tribunal sent correspondence to the parties dated March 1, 2016 requesting submissions as to whether the Application should be deferred pending the conclusion of the grievance process. As the parties either supported or did not object to the deferral, the Tribunal confirmed by correspondence dated April 14, 2016 that the Application was deferred pending the completion of the grievance process. The Tribunal’s letter specifically directed the parties to Rules 14.3 and 14.4 of this Tribunal’s Rules of Procedure, which outline the procedure by which the Application may be brought back on after the completion of the other proceeding.
4Rule 14.4 provides that “where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding”.
5The Grievance proceeded to a Step 2 meeting on March 30, 2016. By letter dated April 5, 2016, the respondent denied the Grievance as the applicant chose not to participate in the Step 2 meeting. There is no dispute that this letter was sent to and received by the applicant on or about April 5, 2016.
6Pursuant to Article 16.01 of the collective agreement between the respondent and the Union, a request for a grievance to proceed to arbitration must be made in writing within 15 days after the decision at Step 2 is given. This 15 day period expired on April 20, 2016. The Union did not refer the Grievance to arbitration.
7On March 3, 2017, the Tribunal sent a letter to the parties directing the applicant to advise within 30 days whether the grievance process was still ongoing.
8By Request for Order dated April 3, 2017, the applicant advised that the grievance process was completed and requested the re-activation of his Application. He also sought to amend his Application to raise certain alleged incidents of discrimination that had occurred since the filing of his original Application, with the last alleged incident having occurred on March 19, 2017.
9The respondent in turn filed a Response to Request for Order objecting to the applicant’s request to re-activate his Application, on the basis that the request had been made well beyond the 60 day period required by Rule 14.4.
10By Case Assessment Direction (“CAD”) dated May 16, 2017, this Tribunal directed that a preliminary hearing be held by teleconference to hear the parties’ oral submissions on whether the Application should be re-activated.
11The preliminary hearing proceeded