HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Susan Rogers
Applicant
-and-
Hamilton-Wentworth District School Board, Leanne Sneddon and John Moffat
Respondents
-and-
Canadian Union of Public Employees, Local 4153
Intervener
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Rogers v. Hamilton-Wentworth District School Board
1This Interim Decision deals with the respondent’s request that this Application be dismissed pursuant to s.45.1 or, in the alternative, deferred pending the completion of a related grievance proceeding. In addition, it deals with the applicant’s bargaining agent’s request to intervene.
2This Application, filed on November 19, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges that the applicant was discriminated against on the basis of her disability. Subsequent to that, the Applicant submitted an affidavit to the Tribunal in which discrimination on the basis of sex is alleged, although as of the date of this Interim Decision she has not yet moved to amend the Application to add that ground.
SECTION 45.1
3In their Response, the respondents note that the applicant filed a claim for benefits under the Workplace Safety and Insurance Act 1997, S.O. 1997 c.16, as amended (“WSIA”) on the basis that she was the target of a harassment campaign by management, which was affecting her physically as well as emotionally. The respondents request that the Tribunal dismiss this Application on the basis that the substance of the Application was appropriately dealt with in the proceeding under the WSIA.
4The statutory authority for early dismissal is found in s. 45.1 of the Code, which provides:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
5On the face of the documents attached to the Response, it is apparent that the “proceeding” under the WSIA did not appropriately deal with the substance of the Application. The request made to the WSIB was for benefits for “traumatic mental stress.” Entitlement to this benefit is limited to those who experience “a specific, sudden and unexpected traumatic event in the workplace” and does not include mental stress that develops “gradually over time, due to general workplace conditions.” The fact that the WSIB denied benefits to the applicant on the basis that she did not meet this test is not determinative of the substance of her Application.
DEFERRAL
6Subsequent to the applicant filing her Application (but prior to the service of it), the applicant’s employment with the respondent School Board was terminated. Her bargaining agent, the Canadian Union of Public Employees, Local 4153 (“CUPE”) filed a grievance on January 21, 2010, the same day as her termination.
7The respondents request that the Application be deferred pending the grievance filed on behalf of the applicant by CUPE. They and CUPE advise that the grievance is scheduled to proceed before Arbitrator Davie on September 23, 2010. The applicant opposes deferral on the basis that she “has more faith in the Human Rights Tribunal of Ontario that [sic] she does in the arbitration system.” Specifically, she states that she has “systemic” issues that are “indicative of a widespread and pervasive epidemic within the organizational Respondent.”
8The 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 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.
9The 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.
10Where 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.
11In 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. If the applicant believes at the conclusion of the grievance process that her human rights issues have not been adequately addressed, she may ask to have this Application brought back on before the Tribunal.
12The Application will therefore be deferred pending the completion of the grievance process. The 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.
REQUEST TO INTERVENE
[1] As noted above, CUPE is the bargaining agent for employees in the applicant’s workplace. The Tribunal, therefore, gave notice of the Application to CUPE. CUPE seeks to intervene in accordance with Rules 11.2 and 11.3 of the Tribunal’s Rules of Procedure. Although served with the Request to Intervene, neither the respondents nor the applicant took a position on CUPE’s intervention.
[2] Given that CUPE represents the applicant in an ongoing grievance arising out of the facts that give rise to this Application, it has a significant interest in the outcome of the Application, including the remedial orders requested by the applicant. The union’s request to intervene is granted. Given the Tribunal’s decision to defer this Application, the extent and the nature of the union’s participation in the proceeding can be determined when and if the matter is brought back before the Tribunal.
Dated at Toronto, this 12th day of August, 2010.
”Signed by”
Naomi Overend
Vice-chair