Kimberly Palmer v. Woods Park Care Centre, 2009 HRTO 1546

Human Rights Tribunal of Ontario

B E T W E E N:

Kimberly Palmer

Applicant

-and-

Woods Park Care Centre

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: September 25, 2009 Citation: 2009 HRTO 1546 Indexed as: Palmer v. Woods Park Care Centre

1This Interim Decision deals with the respondent’s request to defer the applicant’s Application until such time as her grievance filed by the Service Employees International Union, Local 1 Canada (“SEIU”) has been completed.

2The applicant filed her Application on June 18, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination in employment by the respondent. Following notification to her union, the SEIU filed a Request to Intervene in which it advised it had filed a grievance on the applicant’s behalf seeking the same remedies on issues identical to those set out in her Application to the Human Rights Tribunal of Ontario. At that time the SEIU did not take a position on deferral.

3In its Response, the respondent requested that the Tribunal defer to the grievance process. The SEIU filed further submissions, in which it now supported deferral. It advised that the parties had selected an arbitrator and were currently attempting to schedule the hearing on the grievance. The respondent also filed further submissions in which it enclosed copies of the correspondence from itself and the SEIU to the arbitrator asking for her dates. Although the applicant was served with copies of these various submissions, she has not filed any response submissions with the Tribunal.

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.

5The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues: see for example, Krieger v. Toronto Police Services Board, 2008 HRTO 183.

6The 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 (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

7The applicant has filed a grievance alleging that she had not been accommodated in the workplace in accordance with her medical restrictions. She specifically relies upon the provisions of the Code, as well provisions in the current collective agreement. The grievance appears to arise out of the same facts and allegations as set out in this Application. Moreover, the grievance process is ongoing and, at last notice, the parties were in the process of setting a hearing date.

8In these circumstances, the Tribunal finds the most fair, just and expeditious approach is to defer consideration of this Application until the grievance arbitration process is concluded. Accordingly, the Tribunal orders that this Application be deferred pending the conclusion of the grievance arbitration process.

9The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance with Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

10I am not seized of this matter.