Strickland v. Scarborough Hospital, 2010 HRTO 240

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roberta Strickland

Applicant

-and-

The Scarborough Hospital

Respondent

-and-

Canadian Union of Public Employees, Local 1487

Intervenor

INTERIM DECISION

Adjudicator: Alison Renton

Date: February 2, 2010

Citation: 2010 HRTO 240

Indexed as: Strickland v. Scarborough Hospital

1This is an Application filed on May 19, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The applicant alleges discrimination on the basis of disability in her employment by the respondent. She specifically alleges that, despite medical documentation clearing her to return to work without restrictions, the respondent has failed to return her to work.

2This Interim Decision deals with whether the Application should be deferred pending the completion of a related grievance proceeding filed by the Canadian Union of Public Employees, Local 1487 (“the union”), the applicant’s bargaining agent, as well as the union’s Request to Intervene.

REQUEST TO INTERVENE

3The union seeks to intervene in accordance with Rule 11 of the Tribunal’s Rules of Procedure. The applicant and the respondent have not submitted any materials in response to the union’s Request to Intervene (although the respondent has named the union as an affected party to this proceeding) and the deadline for doing so has now passed.

4The union represents the applicant in a grievance that is referenced in the Application and in the respondent’s Response. It has a significant interest in the outcome of the Application, including the remedial orders requested by the applicant. The union’s Request to Intervene is granted.

REQUEST TO DEFER

5The respondent indicates in its Response that the facts of the Application are part of a union grievance that is still in progress and encloses a copy of the grievance, dated May 29, 2008, filed by the union on the applicant’s behalf. The respondent submits that the grievance is based upon the same facts and issues as those raised in the Application. The grievance alleges, among other things, that the respondent violated the collective agreement on a number of grounds, including the “no discrimination” article which prohibits discrimination in employment on the basis of handicap (or disability) and other Code grounds. The grievance alleges this violation occurred when the applicant was medically cleared to return to work and the respondent deemed it unsafe and thus did not return her to work.

6The respondent states that the grievance is still proceeding in accordance with the process established by the collective agreement and therefore requests that the Tribunal defer the Application pending the outcome of the grievance.

7The union did not file any submissions to the respondent’s request to defer. However, in its Request to Intervene, the union noted that it filed the grievance on the applicant’s behalf regarding the same issues as those in the Application. The union advised that the grievance was proceeding through the grievance procedure as set out in the collective agreement and noted that a meeting was scheduled for September 14, 2009.

8The applicant objected to the Request for Deferral by letter dated October 19, 2009 (the “reply”). She submits that she does not wish to defer or postpone her Application. She states that the respondent refused to hear or participate in the September 2009 grievance meeting. She alleges that she asked the union to help her with a response, but they were “not very accommodating” due to out of town business.

9Following receipt of the applicant’s October 19 correspondence, the Tribunal sent a letter to the parties and the union directing them to provide an update about the status of the grievance in light of the applicant’s reply. The respondent and the union submitted correspondence advising that the parties were working together in addressing the issues in the grievance and finding appropriate accommodation for the applicant within the workplace. The applicant did not submit any correspondence and the time for doing so has passed.

10The 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). 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.

11The 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).

12The 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.

13In 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. I am satisfied that the concerns the applicant raises about her grievance do not justify a departure from the Tribunal’s normal approach. The matter is still live between the parties and the union and the grievance process has not concluded. If the applicant believes, on conclusion of the grievance/arbitration process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

14The Application will therefore be deferred pending the completion of the grievance process. The 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.

15I am not seized of this Application.