Taylor v. Humber River Regional Hospital, 2010 HRTO 2052

Human Rights Tribunal of Ontario

B E T W E E N:

Ezra Taylor

Applicant

-and-

Humber River Regional Hospital, Frances Reinholdt, Kelly Kimens, Evangaline Andaya and Catherine Green

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: October 7, 2010

Citation: 2010 HRTO 2052

Indexed as: Taylor v. Humber River Regional Hospital

1This is an Application filed on December 2, 2009 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 indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress. The respondents subsequently filed a Request for an Order During Proceedings (Form 10), requesting that the Application be deferred pending the completion of the grievance filed on his behalf by his union, the Ontario Nurses Association ("ONA"). A copy of the grievance filed on his behalf by his ONA was attached to the Request.

3It is the respondents' position that the "matters that comprise the subject of this Application are virtually identical to the subject matter at issue in the grievance arbitration" and that the "redress sought in the grievance arbitration is substantially identical to the remedy sought in this Application." The respondents advise that the matter will be commencing before an Arbitrator on October 15, 2010.

4The applicant opposes deferral on the basis that he does not have faith in ONA to deal with this matter appropriately in light of its inability to deal with the "reckless conduct" of the respondents over the previous five years. He also alleges that when he appeared before a different arbitrator in 2007, this arbitrator failed to follow the Code or labour law principles.

5In addition, the applicant indicates that the arbitration will only address the events occurring in 2009, whereas his Application alleges issues relating to the previous five years. Finally, he is seeking $150,000.00 in damages in the Application, which he describes as a "heavy penalty," which is not part of his grievance. It would appear from his submissions that the applicant believes that deferral is synonymous with dismissal.

6The 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.

7The 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).

8The 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.

9In 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 grievance. The Application primarily deals with matters arising in 2009. The Tribunal is without jurisdiction to award "penalties" so that the failure of ONA to seek such a remedy is not significant.

10Moreover, the grievance is scheduled to commence shortly, and will be addressed in a more expeditious fashion than the Application. I am satisfied that the concerns the applicant raises about ONA or the potential problem he anticipates with the assigned arbitrator (whom he has not proceeded before) do not justify a departure from the Tribunal's normal approach. If the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

11The Application will therefore be deferred pending the completion of the grievance process.

12The 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. The respondents' request to remove the individual respondents will be dealt with by the Tribunal should the Application be brought back on.