Lalonde v. OMNI Healthcare, 2009 HRTO 607

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kim Lalonde Applicant

-and-

OMNI Healthcare Limited Partnership o/a Woodland Villa Respondent

INTERIM DECISION

Adjudicator: Alan Whyte Date: May 11, 2009 Citation: 2009 HRTO 607 Indexed as: Lalonde v. OMNI Healthcare

WRITTEN SUBMISSIONS BY:

Kim Lalonde, Applicant ) On her own behalf OMNI Healthcare Limited Partnership ) Hugh Dyer, Counsel o/a Woodland Villa, Respondent )

1In its Interim Decision 2009 HRTO 449, the Tribunal directed that the parties provide submissions with respect to the issue of whether this Application should be deferred pending the outcome of an outstanding grievance filed on the applicant’s behalf by her bargaining agent on December 9, 2008. The purpose of this Interim Decision is to determine that issue.

Background

2This Application alleges that the respondent failed to accommodate the applicant's disability when it advised the applicant in December 2008 that it was not able to continue to provide modified work to the applicant. The applicant filed a grievance dated December 9, 2008 against the respondent which alleged a violation of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) and the duty to accommodate by not allowing the applicant to return to work as per her doctor's orders. The relief sought in the grievance was that the employee be compensated for any loss of earnings and be returned to her former position.

3The collective agreement between the respondent and the applicant's bargaining agent, the Canadian Union of Public Employees (“CUPE”), contains an anti-discrimination provision which references the prohibited grounds of discrimination under the Code.

4A grievance meeting to address the applicant’s grievance was held on or about February 5, 2009, after which the respondent denied the grievance. CUPE requested a further meeting to discuss the grievance in late March. The respondent has agreed to attend such meeting provided that the applicant agrees to attend at an independent medical evaluation to confirm her current medical status and physical restrictions. CUPE and the respondent are currently discussing the issue.

5The collective agreement contains the standard provisions indicating that if the grievance is not resolved through the grievance procedure, it can be referred to arbitration by either the union or respondent. In such event, the arbitrator would have both contractual and statutory authority to address and resolve the applicant's claims.

6The applicant provided extensive documentation as part of her submissions, most of which appear to go to the merits of the Application, but addressed the issue of deferral and the status of the grievance only briefly. After describing some of the dealings relating to her grievance between the respondent and CUPE between December 2008 and March 2009, she indicates that she has no information as to the status of the grievance as of April 17, 2009.

7The respondent provided submissions which highlight the overlap between the applicant’s grievance (in terms of the facts relied upon, the issues and the remedy sought), the existence of the anti-discrimination and arbitration provisions in the collective agreement, and the status of the grievance as set out in paragraph 4 above. The respondent also referred to certain Tribunal decisions dealing with the issue of deferral in relation to an ongoing grievance. The respondent submitted that there are no circumstances in the present case which would cause the Tribunal to deviate from its normal practice of deferring to grievance and arbitration proceedings.

Decision

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. In this case, the facts and issues raised by this Application are part of the grievance process that is 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.

9Where the facts and issues raised by the Application are part of a grievance which relies on the same or substantially the same facts and issues, where the collective agreement includes an anti-discrimination provision which incorporates by reference the Code protections, and where the collective agreement in question provides the applicant the option of binding arbitration (at which time the arbitrator will be obligated to apply the Code as if it was part of the collective agreement), the Tribunal has typically deferred the Application pending the outcome of the grievance process: see Barbieri v. Hamilton-Wentworth District School Board, 2009 HRTO 12 and Russo v. Toronto Community Housing Corporation, 2009 HRTO 149.

10In this case, it is clear that the grievance process is continuing and has not concluded. The applicant did not identify any particular circumstance which would cause the Tribunal to depart from its normal approach.

11In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of her grievance.

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.