Savard v. OMNI Health Care, 2010 HRTO 1689

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Savard Applicant

-and-

OMNI Health Care Limited Partnership o/a Woodland Villa Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: August 13, 2010 Citation: 2010 HRTO 1689 Indexed as: Savard v. OMNI Health Care

1This is an Application filed on June 8, 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.

2The applicant indicated in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress. The applicant enclosed copies of two grievances filed on her behalf by her union, the Canadian Union of Public Employees, Local 1919 (the "union"), dated December 21, 2009, and April 26, 2010. The applicant indicated that she was not asking the Tribunal to defer her Application pending the completion of the grievance proceeding.

3On July 23, 2010, the Tribunal issued a Notice of Intent to Defer, with a copy of the Application, and invited submissions from the parties and the union on whether or not the Application should be deferred.

4The union takes the position that the Application should be deferred, pending the outcome of the two grievances that were filed on the applicant's behalf. The union explains that one grievance concerns the employer's failure to accommodate the applicant and the other grievance concerns the applicant's termination from employment. The union submits that both grievances were referred to arbitration on April 26, 2010.

5The respondent also submits that the Tribunal should defer consideration of the Application pending the disposition of the grievances. While the respondent submits that only the accommodation grievance has been referred to arbitration, both the union and the respondent confirm that the two grievances have been consolidated. The respondent submits that the grievances address the same facts and issues as the Application before the Tribunal.

6The applicant has not provided submissions on the deferral issue and the time for doing so has elapsed.

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 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.

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 substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievances. There are no circumstances that would cause the Tribunal to depart from its normal approach. The Application will therefore be deferred pending the completion of the grievance process.

11The 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.

12I am not seized of this matter.