Lafond v. South Essex Community Council, 2009 HRTO 1244

Human Rights Tribunal of Ontario

Between:

Cynthia Lafond Applicant

-and-

South Essex Community Council, CUPE 4523 Executive, Carolyn Warkintin, Rae-Anne Scratch and Maureen Sutherland Respondents

Interim Decision

Adjudicator: Judith Keene Date: August 12, 2009 Citation: 2009 HRTO 1244 Indexed as: Lafond v. South Essex Community Council

1This is an Application filed on January 19, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment on the basis of disability. This Interim Decision deals with a Request for Early Dismissal and an alternative request for deferral from South Essex Community Council and Carolyn Warkinton ("the employer"), and a request for deferral from CUPE 4523 Executive, Rae-Anne Scratch and Maureen Sutherland ("the union").

2The Application alleges that the employer and the union denied the applicant use of sick time for medical appointments and treatments relating to a disability. It also alleges a denial of accommodation on the part of both employer and union. In addition to accommodation relating to use of sick time, a number of specific accommodation-related allegations are made including an issue of file location, use of a personal vehicle, and refusal of special equipment. The applicant also claims harassment and a poisoned work environment.

The Request for Dismissal

3At s. 43(1)1, the Code states that "[a]n application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules". The position of all respondents appears to be that the Application is without merit. No issues in respect to jurisdiction have been raised, and no such issues are evident in the material filed. The respondents' request to dismiss is therefore best left until a hearing is scheduled. The request is denied, without prejudice to the respondents' ability to raise this issue later in the proceedings.

The Request for Deferral

4The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

5The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. 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 (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

6The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, Tribunal's normal approach is to defer to the other proceeding (Blackman v. Ontario (Community Safety and Correctional Services, 2009 HRTO 970))

7It is not likely that the arbitrator's decision on the policy grievance will resolve all of the subject-matter of this Application, as is the Application is focussed on the issue of accommodation of an individual employee and on an allegation of harassment. However, the decision may resolve an aspect of the Application: whether the collective agreement allows the employer to require employees to use "personal days" for sick leave purposes. The terms of a collective agreement are not determinative in a decision as to whether there has been a breach of the Code in a specific employment situation, but they are relevant. In view of the fact that the hearing of the policy grievance is scheduled for mid-September, the Application will be deferred pending the completion of the grievance process.

8The Tribunal directs the parties' attention to Rules 14.3 and 14.4. These Rules outline the procedure by which the Application may be brought back before this Tribunal after the conclusion of the grievance process.

9I am not seized.