Whaley v. Harrowoods Seniors Community, 2010 HRTO 690

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marion Whaley

Applicant

-and-

Harrowoods Seniors Community, Docherty Family Management, Carol Chisholm, Claudette Langlois, Frank Di Persomenico and Lorne Curtis

Respondents

-and-

Canadian Union of Public Employees, Local 3419

Intervener

INTERIM DECISION

Adjudicator: Alison Renton

Date: March 29, 2010

Citation: 2010 HRTO 690

Indexed as: Whaley v. Harrowoods Seniors Community

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the "Code"), on October 5, 2009. This 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 3419 ("the union"), the applicant's bargaining agent, as well as the union's Request to Intervene.

2The applicant alleges discrimination on the basis of disability in employment. Specifically, she alleges that the respondents have failed to accommodate her and have not provided modified duties in the workplace with the result that she has been off work on sick leave for approximately 2 years.

3The corporate and personal respondents, with the exception of Lorne Curtis, filed a joint Response. Mr. Curtis filed a separate Response.

Request to Intervene

4The union seeks to intervene in accordance with Rule 11 of the Tribunal's Rules of Procedure. The applicant and the respondents have not submitted any materials in response to the union's request to intervene and the deadline for doing so has now passed.

5The union represents the applicant in a grievance that is referenced in the Application and in the respondents' Responses. 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

6The respondents request that the Tribunal defer the Application because of a grievance dated October 18, 2007 and filed by the union on the applicant's behalf. A copy of the grievance was filed with the joint Response. The respondents advised that the grievance is still outstanding and the union had referred it to arbitration in December 2009. The union consents to the deferral request.

7The grievance alleges:

(...) the employer has restricted me from continuing to work in a modified capacity and has violated my rights under [the collective agreement and] (...) all applicable legislation. Therefore I/we request that the Employer return me to productive employment & make me whole for all lost rights, benefits, conditions on the Collective Agreement.

8The applicant filed two Replies in which she opposes the Request to Defer. She submits that in her opinion, the grievance is not in progress because it is outside the time limits under the collective agreement.

9The 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 of 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.

10The 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).

11The 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.

12In this case, it is apparent that there is a substantial overlap between the facts and the human rights issues covered by this Application and those referred to in the grievance. While the applicant has expressed concern that the grievance is not timely as per the terms of the collective agreement, on the basis of the material before me, it is not apparent that the respondent corporate respondent is taking that position. Further, I note, without forming any conclusions, that an arbitrator appointed under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, as amended, has the ability to extend time limits in a collective agreement (s. 48(16)). The grievance is still outstanding, has been referred to arbitration, and the grievance process has not concluded. If the applicant believes, on conclusion of the grievance process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

13The Application will therefore be deferred pending the completion of the grievance process.

14The 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 other issues raised by the respondents will be dealt with by the Tribunal if the Application is brought back on.

15I am not seized of this matter.