Black v. Niagara Health System, 2009 HRTO 1056

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary-Jo Black

Applicant

-and-

Niagara Health System

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: July 16, 2009

Citation: 2009 HRTO 1056

Indexed as: Black v. Niagara Health System

INTRODUCTION

1The applicant filed an Application with the Tribunal pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability. In the Application, the applicant notes that a grievance has been commenced on her behalf by her union. The purpose of this Interim Decision is to determine whether or not it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of the grievance proceedings.

2On June 18, 2009, the Tribunal sent the Application and a notice of a Request to Defer to the respondent and the applicant’s union and the Tribunal invited the parties and the union to make submission regarding the issue of deferral. Submissions with respect to the Request to Defer were due on or about July 2, 2009; however, no submissions were received from either the parties or the union.

BACKGROUND

3The applicant filed her Application with the Tribunal on April 21, 2009. In her Application, the applicant alleges that the respondent employer has failed to accommodate her back injury and as a result she has been unable to work since August 2008. On April 9, 2009, the applicant’s union filed a grievance with the employer respondent regarding this matter. The grievance seeks that the applicant be accommodated within her medical restrictions and that she be compensated for all financial losses as a result of the respondent employer’s refusal to provide accommodation. In the Application, the applicant states that she recently met with her union representative, her insurance carrier and employer’s representative to discuss her return to work and it was determined that she would be required to undergo a physical ability assessment. The applicant notes that she is awaiting scheduling of the assessment.

DECISION

4The 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). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues: see Krieger v. Toronto Police Services Board, 2008 HRTO 183 and Loranger v. Customs and Immigration Union, 2008 HRTO 432. In explaining this approach, the Tribunal has referred to the fact that 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: See Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970 citing Parry Sound Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

5Given that the subject matter of the current Application and the grievance are substantially the same, and that there is potential for overlapping remedies, as well as the fact that the applicant, her union and employer appear to be currently involved in return to work discussions, the Tribunal finds in these circumstances that it appropriate to defer consideration of this Application pending the conclusion of the grievance proceeding.

6I am not seized of this matter.