Joy McKenzie v. St. Michael’s Hospital and Tasha Osborne, 2010 HRTO 1037

Human Rights Tribunal of Ontario

B E T W E E N:

Joy McKenzie

Applicant

-and-

St. Michael’s Hospital and Tasha Osborne

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: May 10, 2010

Citation: 2010 HRTO 1037

Indexed as: McKenzie v. St. Michael’s Hospital

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which she alleges discrimination in the context of employment on the basis of race and colour. In essence, the applicant alleges that she was disciplined more harshly than other employees, was subjected to heightened levels of supervision, and that her employment was unfairly terminated.

2The respondents have filed a Response in which they deny the allegations of discrimination and seek the deferral of the Application because of an ongoing grievance proceeding. The applicant has not filed a Reply and the time for doing so has elapsed.

3The respondents state that a grievance filed on behalf of the Applicant raises substantially the same issues as the Application. The respondents state that the applicant’s grievance have been referred to arbitration and argue that it would be fair, just and expeditious to defer this Application pending the outcome of the grievance arbitration.

4The 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.

5In the circumstances, it is appropriate that the applicant’s union, the Ontario Nurses Association, have an opportunity to make submissions on the deferral issue.

6Within ten days of the date of this Interim Decision, the Union may serve on the parties and file with the Tribunal written submissions addressing whether the Application should be deferred in light of an ongoing grievance.

7If the Union does not provide such submissions within ten days of the date of this Interim Decision, the Tribunal may decide the issue based on the materials already filed or may provide further direction.

8I am not seized of this matter.