Pidgeon v. College of Nurses of Ontario, 2009 HRTO 2160

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Judith Pidgeon Applicant

-and-

College of Nurses of Ontario, Amanda Achtymichuk, Faira Bari, Anne Coghlan, Catherine Genereux, Kimberly Germain, Jenna Hofbauer, Melissa Jeethan, Shirley Kennedy, Risa Kirshblum, Anne McKenzie, Cara Moroney, Prudence Morton, Lucy O’Hearn-Grant, Johanna Braden, April Ferreira, SEIU Local 1, Kristen Agrell, Ron Collie, Brad Philp, Ron Roscoe, Sharlene Stewart, Barbara Rankin and Dana Randall Respondents

A N D B E T W E E N:

Judith Pidgeon Applicant

-and-

Bayshore Home Health, Tammy Bienvenuto, Stephanie Buchanan, Stuart Cottrelle, Sheila D’Amore, Susan Fraser, Sara Gleason, Joanne Knudson-Bailey, Tammy LaPlante, Keri-Ann Maenpaa, Caron Moffett, Maureen Prairie, Sue Robinson, Evelyn Veneruzzo, Brenda Green, Michelle Hogan, Lorraine Pairtinen, and Norma Skinner Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: December 11, 2009 Citation: 2009 HRTO 2160 Indexed as: Pidgeon v. College of Nurses of Ontario

1This Interim Decision concerns two related Applications filed on June 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 on the basis of disability, age and record of offences.

2In Application file number 2009-02653-I, the applicant, who was employed as a registered nurse with Bayshore Home Health (“Bayshore”), alleges discrimination in the areas of employment, contracts and membership in a vocational association. She names Bayshore and thirteen affiliated individuals as respondents. She also names as respondents four additional individuals who appear to be employed with Northwest Community Care Access Centre (“NCCAC”), although NCCAC is not named as a respondent. Her union, SEIU Local 1 (the “union”), is identified as an affected party.

3In Application file number 2009-02650-I, the applicant alleges discrimination with respect to membership in a vocational association, employment, goods, services, and facilities, and contracts. She names the College of Nurses of Ontario (the “College”) and fifteen affiliated individuals as respondents. She also names her union and seven additional individuals as respondents, including an arbitrator.

4In her Applications, the applicant indicates that the facts of the Applications are part of both a grievance proceeding and an incapacity proceeding before the College that are in progress. On August 27, 2009, the Tribunal issued a Notice of Intent to Defer the Applications and invited submissions from the parties on whether it would be appropriate to defer consideration of the Applications pending the resolution of the grievance proceeding and the proceedings before the College.

5This Interim Decision deals with the issue of whether or not the Applications should be deferred.

THE POSITIONS OF THE PARTIES

6The respondent Bayshore submits that Application file number 2009-02653-I relates to the applicant’s termination from employment with Bayshore, the union has grieved the termination and deferral of the Application is appropriate. Bayshore submits that in the grievance proceeding the union is advancing a claim that the applicant was not accommodated in employment, constituting discrimination under the Code, and that the relief sought in the grievance proceeding is similar to what the applicant is seeking before the Tribunal.

7The union submits that although the Applications name different responding parties, there are overlapping facts. The union submits that it appears that Application file number 2009-02650-I, in which it is named as a respondent, concerns the applicant’s termination from employment and that it is appropriate for the Tribunal to defer pending the outcome of the grievance procedure. The union confirms that it intends to ask the arbitrator to find that the employer has not fulfilled its duty to accommodate under the Code. The union also indicates that the parties have selected an arbitrator and that the first date of arbitration occurred on March 13, 2009, where the parties attempted to mediate a resolution. The union intends to set a second arbitration date to have the grievance heard and resolved.

8The College submits that after a hearing of the College’s Fitness to Practice Committee on August 19, 2009, the applicant was notified that her certificate of registration was suspended and a Decision and Order, dated September 4, 2009, were sent to the applicant by letter dated September 14, 2009. The College submits that the applicant has thirty days in which to appeal the Decision and Order. The College submits that the issues in the grievance proceeding and the proceedings before its Fitness to Practice Committee overlap considerably with the two Applications before the Tribunal and the Tribunal should defer the Applications pending final results in the arbitral and regulatory litigation.

9The respondent Dana Randall submits that, given his role was solely as an arbitrator, the Tribunal has no jurisdiction to consider or deal with the Application as against him and it should be dismissed.

10The applicant has not provided submissions on the issue of deferral.

DECISION

11Pursuant to Rule 14.1 of the Tribunal’s Rules, the 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. The 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).

12Where 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 (Thiessen v. Niagara Fallsview Casino Resort, 2009 HRTO 1373).

13In the circumstances, the Tribunal determines that it is appropriate to defer both Applications pending completion of the grievance proceeding. Although the two Applications name different parties, there is considerable overlap of facts and issues in the Applications. The applicant has an ongoing grievance that appears to be based on substantially the same facts and issues as are raised in Application file number 2009-02653-I and also has significant overlap with the issues raised in Application file number 2009-02650-I. It appears that arbitration has commenced and the union is seeking a further date for arbitration. The union has confirmed that it intends to ask the arbitrator to find that the employer has not fulfilled its duty to accommodate under the Code. Moreover, the arbitrator will have the authority to deal with the human rights issues raised in the grievance.

14There are no circumstances that would cause the Tribunal to depart from its normal approach. The Applications will therefore be deferred pending the completion of the grievance proceeding.

15In light of my decision that the Applications will be deferred pending completion of the grievance proceeding, and considering there is very little information before me concerning any possible appeal from the Decision of the Fitness to Practice Committee, I decline at this point in time to determine if the Applications should also be deferred pending completion of the regulatory proceedings.

16The remaining preliminary issues raised by the parties can be dealt with if and when the Applications are re-activated.

17The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline how the Applications may be brought back on after the conclusion of the grievance process.

18I am not seized.