Fenwick v. Workplace Safety and Insurance Board, 2010 HRTO 1618

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alana Fenwick

Applicant

• and-

Workplace Safety and Insurance Board and Marie Shallow

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: July 28, 2010

Citation: 2010 HRTO 1618

Indexed as: Fenwick v. Workplace Safety and Insurance Board

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on April 29, 2009, alleging discrimination with respect to employment on the basis of disability. In the Application, the applicant indicated that the facts of this Application are part of a union grievance that is still in progress.

2On July 6, 2010, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal invited the applicant, the respondents and the applicant’s union (as an affected party), to file submissions within 14 days of July 6, 2010 as to why consideration of the Application should or should not be deferred.

3The applicant and the respondents filed submissions in response to the Notice of Intent to Defer. No submissions were received from the applicant’s union.

4The applicant asks the Tribunal to not defer her Application while her grievance is in progress because she does not have confidence that she will receive fair consideration through the grievance process because of her status as a probationary employee. The applicant further submits that she is concerned that delay associated with deferral will render her Application outdated.

5The respondents submit that the Application should be deferred pending the conclusion of the grievance process because both matters raise similar issues arising out of the identical set of facts and the very same remedies are sought in both proceedings. The respondents also note that the grievance has recently been referred to the Ontario Grievance Settlement Board and is in the process of being scheduled for a hearing. The respondents point out that labour arbitrators are empowered to interpret and apply human rights legislation and that, given the similarity of the proceedings, it is likely that a labour arbitrator will consider the same issues as the Tribunal.

DECISION

6The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

7Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are: the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them, see Baghdasserians v. 674469 Ontario, 2008 HRTO 404. In the present case, the subject-matter of the Application overlaps with the substance of the grievance in that both proceedings relate to the applicant’s allegations of disability employment discrimination and both involve claims for loss of earnings and re-instatement. The grievance process is underway and a hearing is about to be scheduled.

8The Tribunal has found it to be appropriate to defer applications where there are on-going grievance proceedings relating to the same facts and issues as alleged in the application, see Cray v. Rouge Valley Health System, 2008 HRTO 120. The applicant did not identify any particular factors which would cause the Tribunal to depart from its normal approach.

9The Tribunal orders that this Application be deferred pending the conclusion of the grievance proceeding. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

10I am not seized of this matter.