Geiger v. St. Thomas-Elgin General Hospital, 2009 HRTO 931

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vera Geiger

Applicant

• and-

St. Thomas-Elgin General Hospital

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: June 29, 2009

Citation: 2009 HRTO 931

Indexed as: Geiger v. St. Thomas-Elgin General Hospital

1The applicant filed an Application with the Tribunal on February 3, 2009 alleging discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Interim Decision deals with the respondent’s request to defer the Application. The respondent identified the Ontario Public Service Employees Union (“OPSEU”) as the trade union and bargaining agent that may be affected by this Application. On May 15, 2009, the Tribunal provided OPSEU with copies of the Application and Response and informed OPSEU that as a named affected party it may request to intervene in the proceeding. No response was received from OPSEU in this regard.

DEFERRAL

3The respondent requests that the Tribunal defer this Application pending completion of a grievance procedure. The respondent submits that the applicant is a member of the OPSEU bargaining unit and that she filed a grievance on December 17, 2008. The respondent asserts that the allegations set out in the current Application are essentially the same issues that are raised in the applicant’s grievance which remains underway.

4As part of its Response, the respondent included a copy of the applicant’s grievance. The applicant grieves pursuant to Article 3 “No Discrimination or Harassment” provision of the collective agreement. The grievance alleges that “the [respondent] hospital has discriminated against my physical disability and has not accommodated my workplace injury needs.” As a desired settlement of the grievance, the applicant seeks that the respondent discontinue the discrimination and/or harassment, that her Workplace Safety and Insurance Board (“WSIB”) claim be made retroactive, that she recover all monetary losses and that her workplace injury accommodation needs be satisfied.

5In her Application, the applicant indicated that the facts as set out in the Application were part of a WSIB claim that is still in progress. As part of her Application, the applicant seeks loss of salary as special damages and general damages. The Application states that a decision from the WSIB regarding the respondent’s re-employment obligations is pending. In her Reply submissions regarding the issue of deferral, the applicant simply asserts that the Tribunal is the proper agency to deal with the complaint and that the grievance procedure has limited reach and cannot provide the redress sought.

DECISION

6Deferral of an application avoids concurrent proceedings and the possibility of inconsistent findings of facts or law. Some 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 type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them, see Monck v. Ford Motor Company of Canada, 2009 HRTO 861 and Klein v. Toronto Zionist Council, 2008 HRTO 189.

7The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues, see Cray v. Rouge Valley Health System, 2008 HRTO 120. However, the Tribunal must consider, in light of particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

8Based on the information provided by the parties, it appears the subject matter of the grievance, as well as the WSIB claim, are related to the allegations made in the current Application, namely in all three proceedings the applicant has alleged disability discrimination and failure to accommodate arising out of the same workplace injury. The grievance and the WSIB claim are still in progress. Given these matters that are currently being pursued by the applicant and that there is a potential for inconsistent findings of fact and possible overlapping remedies, the Tribunal determines that in these circumstances it is appropriate to defer consideration of this Application pending the conclusion of the grievance process. No circumstances that would cause the Tribunal to depart from its normal approach have been identified.

9The respondent’s request to defer is granted. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

10I am not seized of this matter.