HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelly Douglas

Applicant

-and-

St. Joseph’s Health Care Centre and Canadian Union of Public Employees, Local 1033

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: July 7, 2010

Citation: 2010 HRTO 1481

Indexed as: Douglas v. St. Joseph’s Health Care Centre

1The applicant filed an Application on February 27, 2010 under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which she alleges discrimination and reprisal in the area of employment on the basis of disability.

2Along with their Responses, filed on June 1, 2010, the respondents filed Requests for Order seeking to defer the Application pending the completion of three outstanding grievances. In the Requests for Order, the respondents submit that the grievances raise matters which are related to the allegations made in the current Application. The respondents indicate that the grievances were referred to arbitration in May 2010. The respondents also seek early dismissal of part of the Application on the basis that some of the allegations in the Application pertain to concerns which were grieved and settled by the parties by way of a Memorandum of Agreement in November 2009.

3Further, the respondent employer also requests removal of the applicant’s representative. The respondent employer argues that the applicant’s representative is neither a lawyer nor a person licensed with the Law Society of Upper Canada and, accordingly, should not be allowed to represent the applicant before the Tribunal.

4The applicant has not filed a Reply to the Responses or the Requests for Order and the timelines for doing so have elapsed.

REQUEST TO DEFER

5The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

6Based on the materials filed with the Tribunal, it appears that the three outstanding grievances raise concerns with respect to seniority accrual, treatment of the applicant because of temporary disability, attendance issues, warning letters and job denials. The facts and issues raised by this Application are part of grievances that are still in progress. The Application also seeks similar remedies to those identified in the grievance proceedings. I conclude that there is significant overlap in the subject matter of the Application and that of the three outstanding grievances, which the respondents advise have recently been referred for arbitration.

7In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of all grievances.

8Where 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).

REQUEST TO DISMISS

9Given the decision to defer the Application, it is not necessary at this stage to consider whether or not part of the Application should be dismissed as appropriately dealt with by another proceeding. Should this Application be reactivated, the Tribunal may consider the request to dismiss at that time.

REQUEST TO REMOVE APPLICANT’S REPRESENTATIVE

10Given the decision to defer the Application, it is also not necessary to consider the respondent employer’s request to remove the applicant’s representative. The parties’ attention is directed to the Tribunal’s Policy on Representation before the HRTO (available at http://www.hrto.ca), which clarifies the categories of individuals who may act as representatives before the Tribunal. The Policy states:

A party or witness may be represented by an unlicensed person if that person falls within a category the LSUC has exempted from its licensing requirements. The current exemptions permit an unpaid friend or family member, an employee or volunteer from a trade union, and students, volunteers and employees of Legal Aid clinics, among others, to act as a representative. The LSUC’s website contains a complete list of the approved exemptions.

11I am not seized of this matter.