Sandra Lilley v. Caressant Care Nursing & Retirement Homes, 2010 HRTO 86

Human Rights Tribunal of Ontario

B E T W E E N:

Sandra Lilley

Applicant

-and-

Caressant Care Nursing & Retirement Homes, CAW-Canada,

Marie Buckrell and Andrea Christmas

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: January 15, 2010

Citation: 2010 HRTO 86

Indexed as: Lilley v. Caressant Care Nursing and Retirement Homes

1This is an Application filed on October 1, 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 that she has been discriminated against in her employment on the grounds of disability and age. She is represented in her employment relations with her employer by the CAW-Canada, which has also been named as a respondent.

2The employer and union respondents have requested that the Tribunal defer consideration of the Application pending the completion of related grievance proceedings. They have provided the Tribunal with a copy of a grievance filed by the union, dated August 31, 2009, as well as confirmation of the arbitration hearing scheduled for March 25, 2010.

3The applicant did not respond to the request to defer the Application.

4The 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.

5The 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.

6The 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.

7On the material before the Tribunal, it is apparent that the grievance raises the same facts and human rights issues as the Application. The Application will therefore be deferred pending the completion of the grievance process.

8The 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.

9The respondent employer has indicated that one of the named respondents, Andrea Christmas, is no longer employed by them, and that it has forwarded the Application material to her. The Tribunal directs the respondent employer to forward the Interim Decision to this individual respondent, and to provide the Tribunal with her contact information. In view of the deferral of the Application, it is not necessary for this individual respondent to provide a Response pending further direction from the Tribunal.

10I am not seized of this matter.