McKenzie v. St. Michael’s Hospital, 2010 HRTO 1302

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: June 8, 2010 Citation: 2010 HRTO 1302 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 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.

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 applicant has not filed a Reply and the time for doing so has elapsed.

5Following the issuance of an earlier Interim Decision, 2010 HRTO 1037, the applicant’s union, the Ontario Nurses Association (“ONA”), provided submissions on the deferral issue. ONA submits that the focus of the grievance is the termination of the applicant’s employment and that, while discrimination was “discussed in the grievance procedure”, it will not be the focus of the arbitration hearing. ONA does not support the respondents’ request for a deferral of the Application.

6The 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.

7There is significant overlap in the subject matter of the Application and that of the grievance. The termination of the applicant’s employment, in particular, has been raised as an issue in both proceedings. While ONA states that discrimination issue will not be the focus of the arbitration, it is clear that the arbitrator is required to apply the Code in deciding the issues raised in the grievance. Indeed, the Supreme Court of Canada has stated that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

8In this case, while there may be some issues raised in the Application that are not referred to in the grievance, I am satisfied that many of the facts and issues raised by this Application are part of a grievance process and can be dealt with in that context.

9In the circumstances, the arbitration proceeding should proceed to its conclusion before the Tribunal will deal with whatever might remain of the merits of the Application.

10Accordingly, the Application will be deferred pending the completion of the grievance and arbitration process.

11The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which a party may request that the Application proceed.

12I am not seized of this matter.