Human Rights Tribunal of Ontario
B E T W E E N:
Mervis Raynor-Cowie
Applicant
-and-
Regional Municipality of Waterloo
Respondent
DECISION
Adjudicator: Michelle Flaherty
Indexed as: Raynor-Cowie v. Waterloo (Regional Municipality)
1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"), raises allegations that the respondent discriminated on the basis of disability in the context of employment. She also alleges reprisals or threats of reprisal.
2The essence of the allegations is that the applicant's employer suggested to the Workers' Safety Insurance Board ("WSIB") that the injury she complained of had occurred in the applicant's home, not in the workplace.
3In the Application, the applicant identifies the date of the last allegedly discriminatory event as January 2006. She also advises that a grievance and a proceeding before the WSIB have also been initiated.
Notice of Intent to Dismiss based on Timeliness
4On October 15, 2009, the Tribunal administratively issued a Notice of Intent to Dismiss, noting that the Application was filed more than one year after the last incident of alleged discrimination. The Tribunal invited submissions from the applicant regarding the issue of timeliness.
5The applicant filed submissions on October 5, 2009 in which she stated that the alleged discrimination was ongoing until at least October 2009.
6Although it is unclear how this relates to the allegations contained in the Application, the applicant states that the Application is timely because she made repeated attempts to return to work (up to October of 2009) and was thwarted in this effort by the employer.
7It appears that the applicant may have erred in reporting the relevant dates to the Tribunal. Her submissions, dated October 5, 2009, refer to incidents she says occurred on October 16, 2009.
8In the circumstances, I find it is appropriate to invite submissions from the respondent before making a finding regarding the timeliness of the Application.
Deferral
9Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure ("Rules").
10Rule 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.
11According to Rule 14.2:
Where the Tribunal intends to defer consideration of an Application under Rule 14.1, it will first give the parties, any identified trade union or occupational or professional organization and any identified affected persons, notice of its intention to consider deferral of the Application and an opportunity to make submissions.
12The 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.
13Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer the Application, having regard to the status of each proceeding and the steps that have been taken to pursue them.
Order
14The Registrar will provide a copy of the Application, the applicant's submissions dated October 5, 2009 and this Interim Decision to the respondent and the Canadian Autoworkers Union, Local 1106 ("Union").
15Within ten days of the date of this Interim Decision, the respondent is required to file with the Tribunal and provide to the applicant and the Union submissions regarding:
a. whether the Application should be dismissed because it has been filed more than one year since the last alleged incident of discrimination; and
b. in the alternative, whether the Application should be deferred pending the outcome of the grievance and/or the WSIB proceeding.
16The respondent's submissions should address the date of the applicant's attempts to return to work, if any, as well as the status of the grievance and WSIB proceedings.
17Within 15 days of the date of this Interim Decision, the Union may file with the Tribunal and provide to the parties written submissions regarding the deferral issue. The Union's submissions should address the status of the grievance and WSIB proceedings.
18Within 20 days of the date of this Interim Decision, the applicant may file with the Tribunal and provide to the respondent and the Union written submissions addressing the respondent and the Union's position concerning timeliness and the deferral issue.
19I am not seized.
Dated at Toronto, this 14th day of December, 2009.
"Signed By"
Michelle Flaherty
Vice-chair