Baker v. Kingston Hospital, 2008 HRTO 366

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sonia Baker

Applicant

-and-

The Board of Governors of the Kingston Hospital,

Pam Devine and Bill Hunter

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: December 5, 2008

Citation: 2008 HRTO 366

Indexed as: Baker v. Kingston Hospital

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on October 2, 2008. The applicant alleges she experienced discrimination and harassment by the respondents on the basis of her record of offences and perceived disability, naming the corporate respondent as Kingston General Hospital. Although the applicant does not indicate disability as a ground on Form 1 of her Application, she does so on Form 1-A. Attached to the Application were copies of two Grievance Report forms in which the applicant indicates that she is grieving “the employers violation of the Ontario Human Rights Code,” and requests that the employer cease and desist from discriminating against her. The copies of the Grievance Reports attached to the applicant’s response are not signed or dated.

2The Tribunal amends the name of the corporate respondent from “Kingston General Hospital” to “The Board of Governors of the Kingston Hospital” to reflect the name provided in the Response.

3On November 12, 2008, the Tribunal issued a Notice of Tribunal Intent to Defer to which the applicant and respondents responded. Although the Tribunal also sent the Notice to the applicant’s union, the Ontario Nurses Association, (the “union”), it did not respond.

4In the applicant’s emailed Response dated November 22, 2008, she advised that a grievance meeting with the union had been scheduled for November 24, 2008 “to try and resolve the issues of harassment, discrimination and poisoned work environment.” She states that “if these issues are resolved, then yes, it would be appropriate to defer,” but she does not provide a position on whether deferral would be appropriate should the November 24, 2008 meeting not resolve the issues. According to the applicant’s Statement of Delivery faxed to the Tribunal on November 22, 2008, the applicant does not appear to have delivered her Response to the respondents or to the union.

5On November 24, 2008, the applicant emailed the Tribunal a further “update” Response to state that the meeting with the union and the employer had not resolved matters, and “therefore these issues will be going to arbitration at some point in the future.” She does not offer a position with respect to deferring her Application pending the continuation of her grievances through arbitration. This second response also does not appear to have been delivered to the respondents or to the union. The Registrar will deliver the applicant’s two Responses to the respondent and the union together with this Interim Decision.

6On November 24, 2008, the respondents filed their Response to the Notice of Tribunal Intent to Defer. They state that the Application should be deferred until the grievances are addressed through “the process set out in the collective agreement,” and attach copies of the relevant Grievance Reports. These contain signatures by the union representative and are dated as submitted to the employer on October 2, 2008, the same day that the applicant filed her Application.

7The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application. In this case, the parties have not identified any circumstances that would cause the Tribunal to depart from its normal approach. The facts and issues raised by this Application are part of a grievance process that is still in progress. 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 Social Services Administration Board v. O.P.S.E.U., Local 342, 2003 SCC 42).

8In these circumstances, deferral is appropriate. The Tribunal orders the deferral of this Application pending the conclusion of both grievances. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the grievances have been concluded.

9I am not seized of this matter.