Leolita Ghasemi v. Southlake Regional Health Centre, 2010 HRTO 1506

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leolita Ghasemi

Applicant

-and-

Southlake Regional Health Centre, Laura Hitchin and Katherine Fitzgerald

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: July 9, 2010

Citation: 2010 HRTO 1506

Indexed as: Ghasemi v. Southlake Regional Health Centre

1This is an Application filed on March 17, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2Notice of the Application was sent to the respondents on May 12, 2010. Instead of filing a Response, they have filed a Request for an Order During Proceedings, in which they seek deferral of the Application pending the completion of a grievance proceeding. The respondents provided a copy of the grievance filed by the Ontario Nurses’ Association on the applicant’s behalf, as well as a copy of the letter from the arbitrator confirming that the grievance will be heard on August 26, 2010. The grievance alleges that the employer, the corporate respondent, has violated the collective agreement and the Code by failing to provide the applicant with suitable accommodation.

3The applicant did not respond to the Request.

4The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative or on the request of a party. 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 in 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.

5The 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).

6The 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.

7In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The Application will therefore be deferred pending the completion of the grievance process.

8The 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.

9The respondents are not required to file Responses pending further direction from the Tribunal.

10I am not seized of this matter.