HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cheryl McKenzie Applicant
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Villa Forum and Laurie Benjamin Respondents
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Ontario Federation of Health Care Workers, LIUNA Local 11 Intervenor
INTERIM DECISION
Adjudicator: Ena Chadha Date: October 12, 2010 Citation: 2010 HRTO 2068 Indexed as: McKenzie v. Villa Forum
1The applicant filed an Application on June 21, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment on the basis of race, colour, place of origin and ethnic origin.
2In her Application, the applicant responded “No” to the Questions 14 and 15 which query whether the facts of the Application are part of other proceedings that are on-going or completed. However, in response to Question 21, the applicant indicated that she was attaching the relevant document that started another proceeding based on the facts of the Application. No document was in fact attached.
3The Application was served on the respondents and the applicant’s union, Ontario Federation of Health Care Workers, LIUNA Local 11, as a named affected party.
4On September 9, 2010, the applicant’s union filed a Request to Intervene. The union submits that it seeks to intervene in this Application because the union has filed “several grievances” on behalf of the applicant.
5The respondents and applicant have not responded to the Request to Intervene and the time for doing so has elapsed.
6On September 10, 2010, the respondents filed their Response in which they request the Tribunal defer the Application pending the resolution of the applicant’s grievances. The respondents submit that the applicant, through her union, has filed three grievances regarding the events and allegations contained in her Application.
7On September 16, 2010, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject matter of the Application, pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal invited the applicant, the respondent and the applicant’s union to file submissions within 14 days from September 16, 2010 as to why consideration of the Application should or should not be deferred.
8On September 30, 2010, the applicant filed a response to the Notice to Defer. Some of the applicant’s submissions do not appear to address the issue of deferral, but rather address an issue of dismissal and whether another proceeding has appropriately dealt with the substance of the Application. With respect to deferral, the applicant states that she was unaware of two of the grievances.
9On October 8, 2010, the union filed submissions with the Tribunal, wherein it states no position with respect to the respondent’s request to defer.
REQUEST TO INTERVENE
10The applicant’s union seeks to intervene in accordance with Rule 11 of the Tribunal’s Rules of Procedure. The union submits that it is the bargaining agent for the applicant and represents the applicant in on-going grievances arising out of the facts that give rise to this Application. The union indicates that it has information relating to these matters which may assist the Tribunal.
11In 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 applicant’s union seeks full party status.
REQUEST TO DEFER
12The 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.
13In their Response, the respondents submit that the applicant’s three grievances raise the same issues which are alleged in the current Application, namely discrimination and harassment and unfair discipline. The respondents indicate that a mediation meeting about the grievances was scheduled for September 17, 2010 and that confirmation of this mediation was sent on July 2, 2010.
14Based on the materials filed with the Tribunal, it appears that there are outstanding grievances regarding the same concerns which are raised in the Application. While the applicant’s September 30 submissions suggest that she had no knowledge of two of the grievances, the Application indicates the applicant had raised her concerns with the union. In response to Question A11, which queries to whom the applicant complained about the discrimination and harassment, the applicant stated that she complained to her union representative. Without deciding any facts or issues, it appears likely that the applicant made her concerns known to the union which resulted in the three grievances.
15I have reviewed the grievances and it is apparent that the allegations of unfair discipline in the grievances are replicated in the Application. Furthermore, the grievances appear to seek similar remedies to those identified in the Application. I conclude that there is significant overlap in the subject matter of the Application and the outstanding grievances.
16In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the grievance. 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.
17Where 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).
18I am not seized of this matter.
Dated at Toronto, this 12th day of October, 2010
"signed by"__________________
Ena Chadha Vice-chair