Florence Barry v. St. Michael’s Hospital and Tasha Osborne, 2010 HRTO 1745

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Florence Barry Applicant

-and-

St. Michael’s Hospital and Tasha Osborne Respondents

INTERIM decision

Adjudicator: Ena Chadha Date: August 24, 2010 Citation: 2010 HRTO 1745 Indexed as: Barry v. St. Michael’s Hospital

Reasons for Decision

1The applicant filed an Application on March 26, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment o the basis of race, colour, disability and age.

2The Application alleges that the respondents subjected the applicant to unfair treatment with respect to a patient complaint and required the applicant to undertake a mandatory health course, which eventually lead to the applicant feeling compelled to retire from her employment with the organizational respondent. The applicant alleges that when she sought to revoke her retirement, the respondents placed her on a leave of absence. The applicant further alleges that the respondents have continued to treat her unfairly with respect to her accommodation needs.

3On July 19, 2010, the Tribunal received the respondents’ Response and on the same date received a letter from the applicant’s union, Ontario Nurses Association (“ONA”), which had been identified as an organization potentially affected by the proceeding. The ONA advised that it takes no position with respect to the Application. The respondents request that the Tribunal, pursuant to section 45 of the Code, defer consideration of the Application because there is an on-going grievance with respect to some or all of the facts and issues raised in the Application.

4On August 16, 2010, the applicant filed a Reply and asked the Tribunal to deny the respondents’ request to defer because she has lost confidence in the union to represent her rights. The applicant further indicates that she has recently had discussions with a representative of the union regarding the possibility of filing additional grievances regarding her employment concerns, including the respondents’ alleged failure to accommodate.

5The purpose of this Interim Decision is to deal with the issue of whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of the grievance process.

6The parties provided copies of documents which indicate that the applicant’s union has filed a grievance, dated January 21, 2010, regarding the issues of the mandatory health course, retirement and the suspension of the applicant’s employment. The documents further indicate that a Notice to Arbitrate was issued on July 14, 2010 regarding this grievance. The applicant indicates that the union has advised that it is “in the process of filing another grievance” on the basis that the organizational respondent has violated the Collective Agreement by failing to accommodate the applicant.

7The 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). The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

8The Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application. The allegations raised in this Application are part of a grievance process that is still in progress. The applicant did not identify any particular factors which would cause the Tribunal to depart from its normal approach.

9In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the applicant’s grievance.

10Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

11I am not seized of this matter.