Henderson v. Canadian Blood Services, 2009 HRTO 103

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bonnie Henderson

Applicant

-and-

Canadian Blood Services, Joanna Jarmasz, Susan McGrath

and Ron Huttman

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: January 29, 2009

Citation: 2009 HRTO 103

Indexed as: Henderson v. Canadian Blood Services

1This is an Application, filed on September 16, 2008, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended.

DEFERRAL

2In their Response filed on November 18, 2008, the Canadian Blood Services, Joanna Jarmasz and Susan McGrath took the position that this Application should be deferred pending the determination of the grievance filed by the applicant’s union, Ontario Public Service Employees Union, Local 5103 (“OPSEU”) because the grievance arose out of the same facts as this Application. By Interim Decision, Henderson v. Canadian Blood Services, 2008 HRTO 455, the Tribunal invited submissions from the applicant on the issue of deferral.

3The applicant filed submissions opposing the request to defer, and saying, among other things, that the Tribunal has the expertise to “bring [her] application to a successful conclusion,” whereas her union representative has advised her that “OPSEU does not have the knowledge and ability to deal with Human Rights violations against [her].” She also alleges that her union representative has opined that the matters in her grievance and the matter in this Application are separate issues. OPSEU, although provided with a copy of the Interim Decision, did not make submissions on the issue of deferral.

4The above-named respondents filed submissions in response to the applicant’s submissions. They deny that the matters involve separate issues, saying that the grievance concerns a violation of the collective agreement’s no-discrimination clause. They also note that the applicant acknowledged in her Application that she commenced a grievance on the same issues as those found in her Application.

5Finally, the respondents state that Canadian Blood Services was advised by OPSEU that it has referred the grievance to arbitration and assert, “an arbitration hearing is likely to be scheduled very shortly.”

6The 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.

7A review of the grievance form submitted by the applicant shows that her allegations include a violation of the Collective Agreement’s no discrimination article. Contrary to the applicant’s submission that the issues in her grievance are different than the issues in her Application, it would appear that her grievance includes the allegations that gave rise to her Application.

8I am not persuaded by the applicant’s submission that OPSEU cannot adequately grieve human rights violations. . Speculative The Supreme Court of Canada, in a case in which OPSEU was a party, agreed with the union’s position that grievance arbitrators have the responsibility to implement and enforce the substantive rights and obligations set out in human rights legislation 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).

9The applicant has failed to raise any particular circumstances concerning her matter that would cause this Tribunal to depart from its usual approach of deferring when there is an ongoing grievance based on the same facts and issues. Accordingly, the Tribunal will defer this matter pending the conclusion of the grievance and arbitration process.

10Where a party wishes to proceed with an application that has been deferred, the party must make a Request for Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

NO RESPONSE

11The Tribunal wrote to the four named respondents on October 14, 2008, advising of them of the Application and directing them to file a Response within 35 days of the date of the letter. As noted above, a Response was filed on behalf of her employer respondent and two of the three individual respondents.

12The third individual respondent, Ron Huttman, wrote a letter to the Tribunal, dated November 8, 2008, indicating that he had just returned from holidays, which is why he was “late” responding to the allegations. In fact, he was well within the 35 day limit at that point. This letter contained no information, other than indicating that he could be reached through his supervisor, Susan McGrath. To date, Mr. Huttman has filed no Response. It would appear that Mr. Huttman may be under the mistaken impression that he can rely on Ms. McGrath to speak on his behalf.

13Mr. Huttman is reminded that where a complete Response is not filed, the Tribunal’s Rule 5.5 provides that a non-responding respondent may be deemed to have accepted all the facts in the Application and to have waived all rights to further notice or participation in the proceeding.

14I am not seized of this matter.