Sandra Lysionek v. Hôpital Régional de Sudbury Regional Hospital, 2009 HRTO 1287

Human Rights Tribunal of Ontario

BETWEEN:

Sandra Lysionek Applicant

-and-

Hôpital Régional de Sudbury Regional Hospital Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta Date: August 19, 2009 Citation: 2009 HRTO 1287 Indexed as: Lysionek v. Sudbury Regional Hospital

WRITTEN SUBMISSIONS BY

Sandra Lysionek, Applicant ) On her own behalf Hôpital Régional de Sudbury Regional Hospital, ) David Daniels, Counsel Respondent )

1On February 22, 2009, the applicant filed an Application under Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability in employment and reprisal or the threat of reprisal. The respondent disputes the applicant’s allegations and denies it has discriminated against her. The respondent seeks to have the Application deferred pending the resolution of a grievance filed by the applicant’s union on her behalf.

2In a previous Interim Decision, 2009 HRTO 961, the Tribunal invited further submissions from the parties given the applicant’s position that the reason she opposed deferral of this Application was that the grievance process would not go forward until she was able to return to work and that return to work was not foreseeable. The Tribunal has now received submissions from the respondent and the applicant. The applicant’s union, the Ontario Nurses’ Association (the “ONA”), has not made any submissions and its deadline for doing so has now passed.

3The respondent argues that the factual and legal issues in the two proceedings, as well as the remedies sought by the applicant, are the same. Counsel also points out that the reason the grievance process was adjourned was the illness of the applicant and that it is not clear that the applicant could attend either an arbitration or Tribunal proceeding. He argues that it would be unfair to the respondent to proceed with the application as significant expense and effort has already been expended by the union and the respondent on the grievance process. He suggests that the applicant is attempting to “side-step” the control of the union over the process. Finally, the respondent notes that the arbitrator has both the authority and experience to appropriately address the issues in dispute and that delays in a grievance process or the slow pace of some proceedings are not sufficient reason to proceed with a human rights application on the same issues as it would lead to concurrent proceedings.

4In response, the applicant asserts that she has been told by her union that the grievance will not proceed unless she is able to return to work. She indicates that although the initial arbitration date was adjourned due to her illness, the reason for the arbitration not proceeding is not related to any inability on her part to attend as she is able to attend a hearing. She argues that it would be unfair to defer to a process that is not going forward and that her union is aware that she has filed this Application and that the Application was filed at the suggestion of her union representatives.

5Nothing in the respondent’s materials indicates that the grievance process is about to resume and the applicant’s union, although invited to do so, has not provided any indication that it intends to proceed with the grievance or that the applicant is laboring under some misapprehension as to the status of the grievance or the union’s intentions.

6Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of a party. 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.

7I find, based on my review of the information provided by the parties that while the facts and issues raised by the applicant and the remedies sought in this Application are related to the grievance filed, there is no indication that the grievance proceedings, currently adjourned, are likely to resume. The absence of any communication from the ONA indicating otherwise is a factor that adds to this conclusion. In my view, this situation is distinguishable from others where there may be lengthy delays but the process continues to move forward. Given the unlikelihood of concurrent proceedings dealing with the same facts and issues, in these circumstances, deferral is not appropriate.

8I am not seized of this matter.