Mary Pole v. The Ottawa Hospital, 2010 HRTO 150

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Pole

Applicant

-and-

The Ottawa Hospital, Hospitals of Ontario Pension Plan,

and Ontario Public Service Employees Union

Respondents

interiM DECISION

Adjudicator: Alison Renton

Date: January 25, 2010

Citation: 2010 HRTO 150

Indexed as: Pole v. Ottawa 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”), on August 12, 2009. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant alleges discrimination on the basis of disability and age in employment. Specifically, she alleges that she was advised that certain benefits (life and accidental death and dismemberment insurance, optional life insurance, long term disability and dental insurance) would terminate upon the applicant receiving age 65. She alleges that she had a medical illness, for which she required these benefits, but was unable to utilize them because of her age and disability. She also alleges that she was not entitled to a free accrual of a pension from the respondent Hospitals of Ontario Pension Plan (“HOOPP”) which constituted discrimination on the basis of disability and age.

3The respondents filed separate Responses. The Application initially named OPSEU, Local 464 as a respondent. Ontario Public Service Employees Union (the “union”) filed a Response, submitted that OPSEU, Local 464 was not properly named as a respondent. The applicant and the other respondent have not objected to the union’s request. The style of cause is accordingly changed to reflect the union as a respondent.

4The respondents in their respective Responses all claim that that section 25 of the Code applies as an exemption to the issues raised in the Application and that there is no violation of the Code. Both The Ottawa Hospital (the “hospital”) and the union request that the Tribunal defer the Application because of a grievance dated August 18, 2009 and filed by the union on the applicant’s behalf. They each enclosed a copy of the grievance, advised it is still outstanding and the union referred it to arbitration in October 2009.

5The grievance alleges a violation of:

The Ontario Human Rights Act [sic] and the Collective Agreement under but not limited to Articles 3, 4 and 21 have been violated in that I have been discriminated against because I have been denied the option to continue with my full benefits upon reaching the age of sixty five. I am being denied Life Insurance, Long Term Disability, Dental and free accrual under The Hospitals of Ontario Pension Plan.

6The applicant filed a Reply in which she submitted that she did not oppose the respondent hospital’s and union’s Requests to Defer the Application. HOOPP, in addition to filing a Response, also filed a Request for Order During Proceedings in which it requested an early Dismissal of the Application on the basis that there is no Code violation because of the section 25 exemption. HOOPP also requested that the Application proceed separately against it if the Application were deferred because of the outstanding grievance.

7The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances of each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

8The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed 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 (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

9The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

10In this case, it is apparent that there is a substantial overlap between the facts and the human rights issues covered by this Application and those referred to in the grievance. The grievance is still outstanding, has been referred to arbitration, and the grievance process has not concluded. Even accepting the respondent HOOPP’s position that it is not a party to the grievance, the remedies being sought in the grievance appear to address the remedies that are being sought in this Application and may be resolved during the grievance process. If the applicant believes, on conclusion of the grievance process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

11The Application will therefore be deferred pending the completion of the grievance process.

12The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. The other issues raised by the respondents will be dealt with by the Tribunal if the Application is brought back on.

13I am not seized of this matter.