Poulsen v. University Health Network, 2010 HRTO 792

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gregory Poulsen

Applicant

-and-

University Health Network, Gillian Gravely, Emma Pavlov, Diana Von Appen and Jane Sloggett

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: April 12, 2010

Citation: 2010 HRTO 792

Indexed as: Poulsen v. University Health Network

1This is an Application filed on September 1, 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 his union, the Ontario Nurses Association (“ONA”).

3The organizational respondent, the University Health Network, requests that this matter be deferred pending the grievance filed on behalf of the applicant by ONA. It indicates that the arbitration commenced before Arbitrator Russell Goodfellow on February 8, 2010.

4The applicant opposes deferral and requests that his Application proceed concurrently with his grievance. He takes the position that his grievance is proceeding at a slow pace; that the grievance does not address allegations of discrimination by the employer not taking place at the workplace; that because some of the allegations are against fellow nurses, ONA is in a conflict of interest position; and that he does not believe that ONA will address the violations of his rights by the Workplace Diversity Department.

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. The particulars of the Application – contained in Appendix “B,” a 21-page, single-spaced typewritten document – are voluminous. It would not be fair, just and expeditious to expose the respondents to duplicate litigation of this degree of complexity on the basis that some of the allegations contained in the Application will or may not be addressed in the grievance.

9If the applicant believes, on conclusion of the grievance process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

10The 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.

11I am not seized of this matter.