Peart v. Primacare Living Solutions, 2010 HRTO 2491

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vivienne Peart Applicant

-and-

Primacare Living Solutions Burton Manor Long Term Care and Linda Stumpo Respondents

-and-

Canadian Union of Public Employees and its Local 4921 Intervenor

INTERIM DECISION

Adjudicator: Jay Sengupta Date: December 15, 2010 Citation: 2010 HRTO 2491 Indexed as: Peart v. Primacare Living Solutions

1This is an Application filed September 15, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2The purpose of this Interim Decision is to address a Request by the Canadian Union of Public Employees and its Local 4921 (the “union”)] to intervene in the Application and a request by the respondents and the union that the Application be deferred pending the resolution of an ongoing grievance.

INTERVENTION BY THE UNION

3The union is the certified bargaining agent for the applicant’s workplace. The union is seeking to intervene on the basis that it has an interest in the outcome of the litigation. The Request to Intervene was delivered to the applicant as well as the corporate and individually named respondents. None of the parties have responded to the union’s request to intervene.

4In the circumstances I am satisfied that the union should be granted intervenor status.

DEFERRAL

5Although the representative for the applicant has stated in his response to question 14 of the Application that the facts are not part of another proceeding that is still in progress, and listed “N/A” (not applicable) in the response to a question as to whether a union grievance is ongoing, both the respondents and the union have confirmed that the facts of this Application are part of an ongoing grievance that has not been resolved or withdrawn. A copy of the grievance filed on behalf of the applicant by the union has been sent to the Tribunal by the respondents.

6Although the Tribunal directed the applicant to submit a Form 3 addressing the respondents’ request for deferral, no material has been received from the applicant and the time for submitting the Reply has now passed.

7The 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.

8The 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).

9The 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.

10In 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 matter is still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant’s grievance will be referred to arbitration. But if the applicant believes, on conclusion of the process, that her human rights issues have not been adequately addressed, she 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.

13I note that the corporate respondent has asked in a letter attached to their response that the personal respondent be removed as a party to these proceedings. If the matter is brought back to the Tribunal, the corporate respondent may file a Request for Order seeking the removal of the personal respondent in which it addresses the factors outlined by the Tribunal in Persaud v. Toronto District School Board, 2008 HRTO 31.

ORDER

14The Canadian Union of Public Employees and its Local 4921 is added to this Application as an intervenor. The Registrar will provide the union with copies of the materials filed by the parties to date. The parties are instructed to copy the union with any subsequent materials in this matter. The extent of the union’s participation in the hearing will be determined by the presiding Vice-chair or Member.

15I am not seized of this matter.