Nadine Rypalowski v. The Porcupine Health Unit and Robert Bell, 2009 HRTO 1884

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nadine Rypalowski

Applicant

-and-

The Porcupine Health Unit and Robert Bell

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: November 5, 2009

Citation: 2009 HRTO 1884

Indexed as: Rypalowski v. Porcupine Health Unit

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) on August 4, 2009. She alleges discrimination in the context of employment on the basis of race and record of offences. She seeks a financial remedy and an external investigation into the respondents’ operations.

2The applicant is also involved in a grievance proceeding. The grievance, filed on June 19, 2009, alleges that the respondents breached the collective agreement by condoning harassment in the workplace. The remedies sought are financial as well as an independent investigation into the alleged workplace harassment.

3On October 2, 2009, the Tribunal issued a Notice of Intent to Defer the Application on the basis that the grievance deals with the subject matter of the Application. The Tribunal invited the applicant, the respondents and the applicant’s union to provide submissions regarding the deferral question by October 16, 2009.

4The respondents filed written submissions with the Tribunal on October 16, 2009. However, neither the applicant nor her trade union responded to the Notice of Intent to Defer.

5The respondents state that the facts of the case support a deferral of the Application. However, it asks that, rather than defer the Application, the Tribunal dismiss it. The respondents argue that the Application is outside the Tribunal’s jurisdiction (power) to decide because it does not allege a violation of the Code. According to the respondents, even if the facts contained in the Application are accepted, there is no basis upon which to find that the Code was breached.

6I have reviewed the Application carefully and I agree that it is difficult to see how the applicant’s allegations relate to the Code. However, in the circumstances of this case, I am satisfied that a deferral of the Application is the best course of action. It is both fair to the parties and makes the most effective use of the Tribunal’s and the parties’ resources. This decision is without prejudice to the respondents’ ability to ask for a dismissal of the Application in the event it is reactivated.

7My decision to defer the Application is based on the following reasons.

8Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure (“Rules”).

9Rule 14.1 of the Rules states:

The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

10The 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.

11Based on the materials filed with the Tribunal, I am satisfied that the grievance proceeding and the Application deal with the same subject matter. In my view, the most fair, just and expeditious way of proceeding is to defer the Application pending the outcome of the grievance proceeding.

12Should any party wish the Tribunal to proceed with the Application once the grievance has been determined, it should consider Rules 14 of the Rules of Procedure.

13I am not seized of this matter.