Maloney v. Sunnybrook Health Sciences Centre, 2009 HRTO 1319

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bridget Maloney

Applicant

-and-

Sunnybrook Health Sciences Centre

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: August 26, 2009

Citation: 2009 HRTO 1319

Indexed as: Maloney v. Sunnybrook Health Sciences Centre

1This is an Application filed on May 29, 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.

2In her Application, the applicant confirmed that the facts of the Application are part of a union grievance that is proceeding to arbitration and a copy of the grievance was attached to the Application. The applicant’s union, the Service Employees International Union, Local 1 Canada (the “union”), filed a Request to Intervene. By letter dated August 5, 2009, the Tribunal invited written submissions from the parties and the union on whether it is appropriate to defer the Application pending completion of the grievance arbitration proceeding. This Interim Decision deals with the issue of whether the Application should be deferred. The style of cause has been amended to reflect the correct spelling of the respondent as provided in the respondent’s submissions.

3The applicant does not appear to take a position on whether deferral is appropriate. She submits, among other things, that when she filed her Application with the Tribunal, the union had not yet decided to refer her grievance to arbitration; however, since that time, a date has been scheduled for December 8, 2009. She submits that if the Tribunal “accepts the request for deferral” she will have no option but to continue to wait until December and hope that her rights will be recognized and protected and that she will be permitted to return to her position with the respondent.

4The union submits that this is an appropriate case for the Tribunal to defer pending the outcome of the grievance procedure. The union submits that it has filed a grievance on behalf of the applicant as a result of the same fact scenario and seeking the same remedies as are set out in the Application. In particular, the union has asked the respondent to accommodate the applicant, return her to her original position and make her whole in terms of lost wages and other benefits. The union also intends to make full argument on the human rights aspect of the case and to ultimately ask the arbitrator to find that the respondent has not fulfilled its duty to accommodate under the Code.

5The respondent submits that deferral is appropriate and attached a copy of the applicant’s grievance and the respondent’s reply to the grievance. Based on the documents, the respondent submits that it would appear that the same issues will be dealt with by the arbitrator as would be dealt with by the Tribunal.

6The particulars of the grievance provided by both the applicant and the respondent state as follows: “The union grieves the unjust decision made by the Hospital in removing the employee from her regular position as an RPN working in I.V. Services and put [sic] her on sick leave and refusing to have her return to work after she was cleared for work by her doctor.”

7The 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 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.

8The 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).

9The 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).

10In the present case, the applicant has a grievance based on substantially the same facts and issues as the Application and the grievance is scheduled for arbitration on December 8, 2009. The union has indicated that it intends to make full argument on the human rights aspect of the case and address the duty to accommodate under the Code. The arbitrator will have the authority to deal with the human rights issues raised in the grievance. There are no circumstances that would cause the Tribunal to depart from its normal approach.

11The Application will therefore be deferred pending the completion of the grievance process. It is not necessary to deal with the union’s Request to Intervene at this point in time.

12The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.

13I am not seized.