Donna Thiessen v. Niagara Fallsview Casino Resort, 2009 HRTO 1373

Human Rights Tribunal of Ontario

Between:

Donna Thiessen Applicant

-and-

Niagara Fallsview Casino Resort Respondent

Interim Decision

Adjudicator: Brian Eyolfson Date: September 1, 2009 Citation: 2009 HRTO 1373 Indexed as: Thiessen v. Niagara Fallsview Casino Resort

1This is an Application filed on March 17, 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. In her Application, the applicant confirmed that the facts of the Application are part of a union grievance that is still in progress and a copy of the grievance was attached to the Application. This Interim Decision deals with the issue of whether the Application should be deferred pending completion of the grievance proceeding.

2The applicant’s union, the Ontario Public Service Employees Union (the “union”), filed a Request to Intervene. The union also indicated in its Request that it filed a grievance on behalf of the applicant in respect of her access to disability benefits and termination from employment. The grievance is scheduled to proceed to arbitration on October 26, 2009. The grievance seeks reinstatement and full financial redress, including interest. The union submits that it will be raising and addressing human rights issues in the arbitration hearing and that the scope of the grievance is effectively identical to the scope of the Application. The union submits that, in all the circumstances, the Tribunal should defer to the ongoing grievance and arbitration procedure.

3The applicant opposes the union’s Request to Intervene and submits that the grievance is a separate matter from the Tribunal matter and should remain so.

4In its Response, the respondent requests that the Tribunal defer the Application until the grievance proceeding is completed. The respondent submits that the grievance and the Application are directly related and cover the same allegations.

5The respondent’s Response was shared with the applicant and the applicant was invited to deliver and file a Reply, addressing the respondent’s deferral request. While the Tribunal has not received a Reply from the applicant, the applicant indicated in both her Application and her Response to the union’s Request to Intervene that she opposed deferral.

6The 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.

7The 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).

8The 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).

9In the present case, the applicant has a grievance based on substantially the same facts and issues as the Application and the grievance is scheduled to proceed to arbitration on October 26, 2009. The union has indicated that it will be raising and addressing human rights issues in the arbitration hearing and that the scope of the grievance is effectively identical to the scope of the Application. Moreover, 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.

10The 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.

11The 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.

12The Application names “Niagara Fallsview Casino Resort” as the respondent. In its Response, the respondent submits that Niagara Fallsview Casino Resort is not the proper respondent to the Application. The respondent submits that “Complex Services Inc.”, a private corporation incorporated pursuant to the laws of Ontario, provides human resources and staffing services to assist in the operation of Casino Niagara and Niagara Fallsview Casino Resort (the “Casinos”). The respondent submits that Complex Services Inc. is the employer of all Casino employees and that the Applicant was employed at all material times by Complex Services Inc. The appropriate name of the respondent(s) can be dealt with if and when the Application is brought back on after the conclusion of the grievance process.

13I am not seized.