HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Timothy Thurtle
Applicant
-and-
William Osler Health Centre and Carillion Services Inc.
Respondents
-and-
Canadian Union of Public Employees, Local 145
Intervener
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: Thurtle v. William Osler Health Centre
1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination on the basis of disability in the context of employment.
2The applicant alleges that the respondents intimidate employees into attending work when they are sick, causing them to become angry and depressed.
3The respondents have filed separate Responses in which they deny the allegations of discrimination and seek the deferral of the Application pending the determination of ongoing grievance proceedings. Carillion Services Inc. (“Carillon”) has also filed a Request for an Order During Proceedings seeking the deferral of the Application.
4The Canadian Union of Public Employees, Local 145 (“Union”) has filed a policy grievance regarding Carillion’s attendance assistance program. This matter is scheduled to proceed to arbitration on April 21, 2011.
5Carillon states that Application and the policy grievance relate to the same facts and issues. It argues that the consideration of the Application should be deferred pending the conclusion of the grievance proceeding. William Osler Health Centre (“Hospital”) concurs with Carillon’s position.
6The Union has filed a Request to Intervene and has filed submissions regarding the deferral issue. The Union states that the consideration of the Application as it relates to Carillon should be deferred pending the determination of the policy grievance. However, the Union argues that the Application should not be deferred as it relates to the Hospital unless the Hospital agrees to be bound by the results of the arbitration decision. The Union states that, otherwise, the policy grievance has no impact on the Hospital.
UNION’S REQUEST TO INTERVENE
8The Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 that:
A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.
9I am satisfied that the Union has the requisite interest in this Application. The Union is granted leave to intervene. Should the Application proceed to hearing, the scope of the Union’s intervention will be determined by the adjudicator hearing the matter.
REQUEST TO DEFER
10Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure (“Rules”).
11Rule 14.1 of the Rules states:
The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.
10The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the 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.
11Deferral 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.
12In this case, many of the facts and issues raised by this Application are part of an ongoing grievance process. In my view, it would not be appropriate to allow the Application to proceed against either respondent at this stage. To do so would create two concurrent proceedings dealing with the same issues and facts.
13Consideration of the Application is deferred pending the completion of the grievance process. Once the grievance has been determined, the parties may ask that the Application proceed in order for the Tribunal to deal with whatever might remain of the merits of the Application.
14The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which a party may request that the Application proceed once the grievance proceeding is complete.
15I am not seized of this matter.
Dated at Toronto, this 21st day of September, 2010.
“Signed By”
Michelle Flaherty
Vice-chair