Lysionek v. Sudbury Regional Hospital, 2009 HRTO 961

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra Lysionek

Applicant

-and-

Hospital Regional Sudbury Regional Hospital

Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: July 3, 2009

Citation: 2009 HRTO 961

Indexed as: Lysionek v. Sudbury Regional Hospital

1On February 22, 2009, the applicant filed an Application under 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 in employment and reprisal or the threat of reprisal. The respondent disputes the applicant’s allegations and denies it has discriminated against her. The respondent seeks to have the Application deferred pending the resolution of a grievance filed by the applicant’s union on her behalf.

2The respondent alleges that the applicant’s union, the Ontario Nurses Association (“ONA”) filed grievances on her behalf, dated February 8, 2008, concerning the alleged failure of the respondent to accommodate her disability. The parties appeared before an arbitrator in April 2008 and a hearing date was subsequently scheduled for July 2008. The hearing could not proceed on the date scheduled due to the applicant’s ill health. There has not yet been a request to reschedule. Finally, the respondent submits that the remedies sought in both the grievance and this Application are the same.

3The applicant has filed a Reply in which she has set out her opposition to the respondent’s request to defer. She states that the union grievance will only proceed if she is able to return to work and that this is “currently not forseeable”.

4Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14.1 of the Tribunal’s Rules of Procedure, 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. Where the Tribunal intends to defer consideration of an application, it will first give the parties and any identified trade union or occupational or professional organization and any identified affected person, notice of its intention to consider deferral and an opportunity to make submissions (Rule 14.2).

5The Tribunal usually defers 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.

6The applicant has provided a reason why she feels that this Application should not be deferred. In the circumstances, before making a decision on deferral, the Tribunal will provide an opportunity to the respondent and the ONA (as an affected party) to make further submissions on the issue of deferral, and to address her assertion that the grievance will not proceed in the foreseeable future. The applicant will be given an opportunity to respond to these submissions.

7The respondent and ONA are directed to deliver written submissions on the issue of deferral to the other parties, and file them with the Tribunal, by July 16, 2009.

8The Applicant may deliver a written response to the submissions on the issue of deferral to the other parties, and file them with the Tribunal, by July 23, 2009.

9I am not seized of this matter.