Paplinskie v. Ontario (Community Safety and Correctional Services), 2010 HRTO 2070

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stefanie Paplinskie

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: October 12, 2010

Citation: 2010 HRTO 2070

Indexed as: Paplinskie v. Ontario (Community Safety and Correctional Services)

Written Submissions By

Stefanie Paplinskie, Applicant ) On her own behalf

Ministry of Community Safety ) Donna Petri, Counsel and Correctional Services, Respondent )

1The applicant filed an Application on July 13, 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 disability. In her Application, the applicant notes that the facts relied upon in her Application are part of a grievance that is still in progress. The applicant provided a copy of the grievance and other related documentation.

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

3On September 2, 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 2, 2010 as to why consideration of the Application should or should not be deferred.

BACKGROUND

4The Application alleges that the applicant's employer discriminated against and harassed the applicant by unduly scrutinizing her medical verification of her mental disability, denying her short-term disability benefits and subjecting her to a poisoned work environment which stigmatized her due to her disability.

5The applicant's grievance is dated June 10, 2010. The grievance alleges that the employer has subjected to the applicant to harassment and demonstrated a lack of sensitivity of her invisible disability. Other documentation accompanying the grievance indicates that the applicant perceives her employer is antagonizing her by questioning her medical information and withholding sick leave credits.

PARTIES' SUBMISSIONS

6On September 17, 2010, the respondent filed submissions asking the Tribunal to defer the Application. The respondent points out that the allegations made in the Application are based on the same facts as those in the grievance. The respondent submits the grievance alleges breaches under the Code and the grievance process before the Grievance Settlement Board ("GBS") is an effective and specialized forum for resolution of such a dispute.

7On September 22, 2010, the applicant filed submissions requesting the Tribunal not defer the Application. The applicant submits that she is experiencing severe financial hardship and undue stress because of the employer's alleged discrimination and seeks that her Application be dealt with as soon as possible.

REQUEST TO DEFER

8The 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). 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.

9Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are: the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them: see Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

10The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. I see no reason to depart from this approach.

11I have reviewed all of the documentation provided by the parties. Based on these materials, it clear that there is an outstanding grievance, which, if taken to the GSB, will be heard by a tribunal with authority to interpret and apply the Code and human rights law principles. The applicant's grievance makes substantially similar allegations as those alleged in her Application; specifically, both claim the applicant has been mistreated by her employer in regards to her mental disability and the handling of her disability benefits. I conclude that there is significant overlap in the subject matter of the Application and that of the applicant's grievance.

12In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the grievance process.

13Where 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).

14I am not seized of this matter.