Bailey v. Community Living Toronto, 2010 HRTO 1988

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cheryl Bailey

Applicant

-and-

Community Living Toronto

Respondent

-and-

Canadian Union of Public Employees, Local 2191

Intervener

INTERIM DECISION

Adjudicator: Ena Chadha

Date: September 29, 2010

Citation: 2010 HRTO 1988

Indexed as: Bailey v. Community Living Toronto

1The applicant filed an Application on April 23, 2010 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which she alleges discrimination with respect to employment on the basis of disability. In her Application the applicant notes that the facts relied upon in her Application are part of a union grievance.

2The Application was served on the respondent and the applicant’s union as a named affected party.

3On June 18, 2010, the respondent filed a Request for Order During Proceedings requesting that the Tribunal defer consideration of the Application pending the completion of two outstanding grievances. The respondent filed its Response on June 30, 2010, wherein it reiterated its request to defer the Application pending the outcome of the grievances.

4On June 30, 2010, the applicant’s union filed a Request to Intervene. The union submits that it has been involved in some of the alleged events which form the basis of the Application. The union also notes that it filed two grievances on behalf of the applicant regarding the alleged events.

5On July 2, 2010, the applicant filed a response to the Request to Defer opposing the Request.

6On July 15, 2010, the respondent wrote to the Tribunal and advised that, although it disputes the union’s recitation of facts, the respondent does not take a position with respect to the union’s Request to Intervene.

7The applicant has not filed a Reply to the Response nor indicated any position with respect to the union’s Request to Intervene and the timelines for doing so have elapsed.

REQUEST TO DEFER

8The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. 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.

9In its Request, the respondent submits that the grievances directly relate to the subject-matter of the Application. The respondent included copies of the two grievances and indicates the parties and the union are currently engaged in discussions regarding these matters. The respondent submits that if these discussions do not resolve the concerns, the union is entitled to refer the matters to arbitration.

10Based on the materials filed with the Tribunal, it appears that the two grievances raise identical concerns with respect to the alleged discrimination and failure to accommodate. The Application and grievances appear to seek similar remedies. I conclude that there is significant overlap in the subject matter of the Application and that of the two grievances.

11In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of both grievances.

REQUEST TO INTERVENE

12The applicant’s union seeks to intervene in accordance with Rules 11 of the Tribunal’s Rules of Procedure. The union represents the applicant in the two grievances arising out of the facts that give rise to this Application. The union indicates that it continues to represent the applicant in the workplace with respect to these grievances and that discussions with the employer are on-going.

13In accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by the union, the union’s request to intervene is granted. The union has a significant interest in the outcome of the Application as the applicant’s exclusive bargaining agent and the entity with carriage of the two grievances.

14Given 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.

15Where 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).

16I am not seized of this matter.