Cressman v. Guelph General Hospital, 2009 HRTO 565

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Cressman

Applicant

-and-

Guelph General Hospital, Ronald Thertell, Carol Watson and Kelly Robinson

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: May 4, 2009

Citation: 2009 HRTO 565

Indexed as: Cressman v. Guelph General Hospital

1This is an Application filed July 18, 2008 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The applicant alleges that the respondents failed to accommodate a knee disability that arose in November 2007. The purpose of this Interim Decision is to determine whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of a grievance proceeding.

BACKGROUND

2The Canadian Union of Public Employees filed a Request to Intervene on August 11, 2008. The applicant filed a Reply to the Request to Intervene. He opposes the request. In an earlier Interim Decision, 2008 HRTO 228, the Tribunal noted that the parties had agreed to attend a mediation session and found that it was appropriate to consider the Request to Intervene until after the mediation.

3On November 11, 2008, the respondents filed a Request for Order During Proceedings, asking that the Application be deferred until a grievance had been disposed of. The grievance was dated November 6, 2008. The grievance alleges that the employer failed to provide suitable modified work, in violation of the collective agreement and the Code. This appears to be the same issue that is the subject of the Application.

4Mediation was scheduled for January 26, 2009 but the applicant was unable to attend. He advised the Tribunal that he had declared bankruptcy. The Tribunal wrote to the applicant on February 10, 2009, asking for information about the Trustee in Bankruptcy.

5On March 25, 2009, the Trustee advised the Tribunal that the applicant made an assignment into bankruptcy on April 29, 2008. The Trustee advised that it takes no position with regard to the applicant's right to continue the Application with the proviso that the Trustee is not a named party and not subject to costs. The Trustee added that it reserves the right to any funds that might become payable to the applicant, subject to the operation of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3.

6On March 31, 2009, the Tribunal wrote to the parties regarding the respondents' Request. The applicant was directed to provide information on the current status of the grievance and his submissions, if any, on the deferral request. The respondents were directed to provide information about the current status of the grievance, and clarification as to whether they were still seeking deferral. The parties were directed to deliver this information to each other and the Tribunal by April 10, 2009.

7To date, no response has been received from the applicant. The respondents wrote on April 7, 2009 and advised that the grievance is "active" and they are still seeking deferral of the Application.

8The 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 will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. The facts and issues raised by this Application are part of grievance processes that are still in progress. 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.

CONCLUSIONS

9In this case, the applicant did not respond to the Tribunal's request for information about the status of the grievance and also declined to make submissions regarding the respondent's Request that the Application be deferred. There do not appear to be any particular circumstances which would cause the Tribunal to depart from its normal approach.

10I therefore find that deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the grievance.

11Given this conclusion, it is not necessary at this time to deal with the Request to Intervene by the union. The Trustee in Bankruptcy is entitled to receive notice of any future proceedings.

12Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

13I am not seized of this matter.