Robin Oldroyd v. Community Addiction and Mental Health Services of Haldimand and Norfolk, 2010 HRTO 492

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robin Oldroyd

Applicant

-and-

Community Addiction and Mental Health Services of Haldimand and Norfolk

and Lisa Bishop

Respondents

interiM DECISION

Adjudicator: Alison Renton

Date: March 4, 2010

Citation: 2010 HRTO 492

Indexed as: Oldroyd v. Community Addition & Mental Health Services of Haldimand-Norfolk

1This is an Application filed on May 28, 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 in employment on the basis of disability, sex, family status and reprisal and specifically in relation to a medical (or sick) leave that she required at the end of a pregnancy and parental leave in 2008. In her Application, she identifies various financial remedies she seeks including the amount she would have received from the federal Employment Insurance (“EI”) program during her medical leave, contributions to her benefits plans, and general damages. 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 her behalf by her union, Canadian Union of Public Employees, Local 4700 (the “union”). The grievance alleges that “Management has violated … the Human Rights Code of Ontario” and requests, amongst other remedies, that:

Management …. resolve the matter to the full satisfaction and benefits (financial or otherwise) of the Grievor and the UNION as well as implement any other remedies (including financial costs, punitive damages or awards), deem [sic] appropriate by an Arbitrator/Board of Arbitration. Additionally that management immediate [sic] grant the Grievor her applied for Sick Leave and any and all benefits or employment rights in relation to such Leave with full retroactive status to the dates applied for by her with full/complete benefits (financial or otherwise) that she is or would have been entitled to receive had the Leave been granted at the time of her original request.

3The applicant alleges that the respondent has not acknowledged the grievance and has denied to the union that it has harassed or discriminated against the applicant. The applicant alleges that the respondent’s Board of Directors advised the union that they are not interested in grievances and that all matters be addressed to the personal respondent who, in this case, is the perpetrator of the harassment.

4In its Response, the respondent requests deferral of the Application. The respondent alleges that the grievance raises the same issues as those in the Application, is still outstanding, and was referred to arbitration by the union on June 25, 2009. The union confirms that it filed a grievance on the applicant’s behalf, but did not respond to the respondent’s request to defer the Application because of the grievance. In her Reply and Amended Reply the applicant did not address whether or not her Application should be deferred because of the outstanding grievance.

5The Tribunal wrote to the applicant and the union on January 25, 2010 requesting submissions to the respondent’s Request to Defer. The applicant has filed written submissions, but the union has not and the time for doing so has now passed.

6The applicant opposes the respondent’s request to defer her Application pending resolution of the grievance proceeding. While she agrees that the same facts are the basis for both the Application and the grievance, she submits that the nature of the claims are different particularly because she is alleging discrimination based upon disability, pregnancy, and family status in her Application as well as reprisal. She alleges that the arbitration proceeding will not address discrimination on the basis of pregnancy, family status or reprisal under the Code, nor will it determine whether the respondents met their duty to accommodate under the Code. The arbitration proceeding will not deal with the financial or personal effects upon the applicant. Further, she alleges that no firm date has been scheduled for the arbitration proceeding, it is unclear if the union’s new national representative will cause further delay in the grievance proceedings, and she is anxious to address the issues in her Application in a fair, just and expeditious manner.

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, as confirmed by the applicant, 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 grievance form, on its face, alleges that management violated the Code. The grievance form seeks remedies that are the same or similar to those requested in the Application. I understand that the applicant is anxious to address the issues raised in her Application without further delay, but because there is no indication that the grievance will not be proceeding, I do not find this factor to outweigh the reasons to defer. The matter is still live and the grievance process has not concluded. 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. The Union’s Request to Intervene will be dealt with by the Tribunal if the Application is brought back on.