Donna Frumusa v. Niagara Health System, 2008 HRTO 450

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Frumusa

Applicant

-and-

Niagara Health System, Jane Charette, Sandra Harte, and Susanne Davy

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: December 31, 2008

Citation: 2008 HRTO 450

Indexed as: Frumusa v. Niagara Health System

1This is an Application filed October 2, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging that the respondents discriminated against the applicant on the basis of disability in respect of employment. This Interim Decision addresses the respondent employer’s request that the Tribunal defer consideration of this Application pending the conclusion of a grievance arbitration hearing in respect of a grievance which, it submits, raises some or all of the same facts and issues as the Application.

2The applicant states that in March 2007, she broke her knee and was required to go off work as a result. She subsequently sought to return to work with her employer, the institutional respondent. The applicant alleges that her employer has refused to allow her to return to work because she was not “100 percent” and that this constitutes a breach of the respondents’ duty to accommodate her up to the point of undue hardship and discrimination on the basis of disability, contrary to the Code.

3The applicant’s trade union filed a grievance in April 2008 on the applicant’s behalf alleging, among other things, that the institutional respondent had violated the Code by failing to accommodate the applicant to the point of undue hardship and by failing to allow her to return to work within her restrictions. As a remedy to the grievance, the Union seeks, among other things, to have the institutional respondent accommodate the applicant to the point of undue hardship by returning her to work within her restrictions. The grievance was referred to arbitration before Arbitrator Brian McLean and a hearing has been scheduled for February 17, 2009.

4The applicant objects to deferral of her Application on the basis that she filed her Application with the Tribunal before the “application” to arbitration was made and that the respondents began discriminating against her in 2007.

5The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). The 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 the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

6The facts and issues raised by this Application are part of a grievance and arbitration process that is still in progress and the applicant has not identified any circumstances that would cause the Tribunal to depart from its normal approach.

7In these circumstances, deferral is appropriate. The Tribunal orders the deferral of this Application pending the conclusion of the arbitration hearing in respect of the applicant’s grievance. 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 grievance and arbitration process has concluded.

8I am not seized of this matter.