Banks v. Bluewater Health, 2010 HRTO 389

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paula Banks Applicant

-and-

Bluewater Health Respondent

INTERIM DECISION

Adjudicator: Sherry Liang Date: February 19, 2010 Citation: 2010 HRTO 389 Indexed as: Banks v. Bluewater Health

1This is an Application filed on January 27, 2009, 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 his behalf by her union, the Service Employees International Union, Local 1 Canada (the "union").

3The respondent asks the Tribunal to defer consideration of the Application pending the completion of the grievance process, and states that an arbitration hearing has been scheduled on the applicant's grievance for March 24, 2010. The applicant does not wish to have her Application deferred, and wishes to proceed with mediation at the Tribunal.

4As the respondent has withdrawn its consent to mediation, this matter would in the normal course be scheduled for hearing. It is therefore necessary for the Tribunal to consider whether it is desirable for both the Application and the grievance to proceed to hearing concurrently.

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 human rights issues covered by the Application and those referred to in the grievance. I see no reasons to depart from the Tribunal's normal approach.

9The Application will therefore be deferred pending the completion of the grievance process. If the Application is brought back on, the Tribunal will consider how to determine the respondent's alternative submission that the Application does not disclose a prima facie case, including whether it should be dealt with as a preliminary issue. The Union's Request to Intervene will also be dealt with by the Tribunal at that time.

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 process.

11I am not seized of this matter.