HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hyacinth Minott
Applicant
-and-
Parkview Home, Long-Term Care (Parkview Services for Seniors) and Fran Lind
Respondents
INTERIM DECISION
Adjudicator: Sherry Liang
Indexed as: Minott v. Parkview Home
1This is an Application filed on June 25, 2010 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, and encloses a copy of the grievance filed on November 24, 2009 on her behalf by her union, the Service Employees International Union, Local 1 ON (the “union”). The Tribunal accordingly issued a Notice of Intent to Defer inviting the parties and the union to make written submissions on whether the Application should be deferred pending the resolution of the grievance proceeding.
3The applicant opposes deferral stating, among other things, that her grievance relates to unfair discipline imposed by the respondent following an incident on October 11, 2009, whereas the subject of the Application is differential treatment with respect the discipline as well as discriminatory re-training requirements following the incident, which resulted in her departure from the workplace in December 2009. She states that she has been waiting for the resolution of her grievance for almost a year and does not know when it will be decided.
4The respondents and the union agree to the deferral of the Application. The respondents provided the Tribunal with a copy of correspondence confirming the employer and the union’s agreement to an arbitrator to hear the grievance. The respondents further indicate that they agree to the arbitrator hearing the subject matter of this Application, and will not object to the arbitrator having jurisdiction to deal with all matters related to the employer’s actions, up to the date of the grievance and to the date of the applicant’s departure from the workplace.
5The 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.
6The 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).
7The 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.
8In this case, it is apparent that there is substantial overlap between the facts and issues covered by the Application and those referred to in the grievance. I am satisfied that the concerns the applicant raises about the delays in processing her grievance do not justify a departure from the Tribunal’s normal approach, particularly in view of the parties’ agreement on an arbitrator.
9The Application will therefore be deferred pending the completion of the grievance and arbitration process.
10The 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 and arbitration process.
Dated at Toronto, this 29th day of November, 2010.
“Signed By”
Sherry Liang
Vice-chair