Saleem v. The Ottawa Hospital, 2010 HRTO 1701

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nusrat Saleem Applicant

-and-

The Ottawa Hospital, University of Ottawa Heart Institute, Dean Belway, Brian Henley, Debbie Hubble and Jason Kennedy Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha Date: August 16, 2010 Citation: 2010 HRTO 1701 Indexed as: Saleem v. The Ottawa Hospital

1This is an Application filed on May 7, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). The applicant alleges that he was discriminated against on the basis of his race, colour, ancestry, place of origin and creed.

2The respondents have not filed a Response. By way of a Request for Order During Proceedings, filed July 6, 2010, they seek deferral of the Application pending the completion of a related grievance proceeding. This Interim Decision deals with the respondents' Request.

3In their Request, the respondents note that the grievance proceeded to a first day of arbitration on May 27, 2010 and that additional hearing days will be scheduled. In email correspondence attached to the respondents' Request, counsel to the applicant indicated his consent to "placing his Human Rights complaint in abeyance until further notice". However, in email correspondence, dated August 11, 2010, addressed to the Tribunal, counsel to the applicant indicated that he is no longer agreeable to the deferral of the Application and is frustrated with the "delay" in the arbitration process. He requests that the Application be "taken out of abeyance, the Respondents be ordered to serve and file their materials forthwith and a hearing date be set…."

4The 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.

5While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held:

Some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type 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. (Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10).

6The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues: see Krieger v. Toronto Police Services Board, 2008 HRTO 183 and Loranger v. Customs and Immigration Union, 2008 HRTO 432.

7There is a public interest in avoiding the duplication of adjudicative proceedings hearing the same evidence and deciding some or all of the same issues. The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues: Blackman v. Ontario (Minister of Community Safety and Correctional Services), 2009 HRTO 970 at para. 5. 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 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.

8The applicant filed a grievance prior to this Application making identical allegations to those made in this proceeding. In the "What Happened" section of the Application, where applicants are directed to plead the specific allegations on which their complaint is based, the applicant referred to "Schedule 'A'", which is a copy of the pleading that was appended to his grievance form.

9In these circumstances, the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration process. 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. The respondents are not required to file a Response until directed to do so by the Tribunal.