Velkers v. Norfolk Association for Community Living, 2010 HRTO 911

Human Rights Tribunal of Ontario

B E T W E E N:

Catherine Velkers

Applicant

-and-

Norfolk Association for Community Living and Stella Galloway

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang Date: April 27, 2010 Citation: 2010 HRTO 911 Indexed as: Velkers v. Norfolk Association for Community Living

1This is an Application filed on December 15, 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 her employer has discriminated against her by failing to accommodate her disability. She states that she has not been permitted to return to work.

2The applicant is represented by the Ontario Public Service Employees Union, Local 221 (OPSEU) in her workplace. OPSEU has filed a grievance on her behalf which alleges that the employer has violated the collective agreement by failing to accommodate her in accordance with the Code. As remedy, the grievance requests that the employer accommodate the applicant “in accordance with the Ontario Human Rights Code” and that she be reimbursed for any and all lost wages, benefits, seniority and service.

3The applicant states in her Application that the reason she has filed the Application is that her union has not been able to make any progress with the employer, after months of meetings.

4The respondents request that this Application be deferred pending the completion of the grievance process. They state that the grievance has been referred to arbitration, agreement on an arbitrator has been reached, and the matter will be heard by the arbitrator on March 10, 2011.

5The applicant was directed to respond to the request to defer. She opposes the request, stating in her Reply that she wishes to proceed as soon as possible with mediation or go straight to trial. She states that the “original grievance filed is no longer relevant due to the circumstances that have taken place since the filing of the application.”

DECISION

6The 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.

7The 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).

8The 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.

9In 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 applicant suggests that her grievance was filed to seek lost wages from September to December and the Application concerns her losses following the filing of the Application in December. Based on my review of the grievance and the Application, I am doubtful that the two matters can be distinguished on this basis. It is clear that both proceedings are about the applicant’s disability and whether the employer has fulfilled its duty to accommodate her disability in the workplace. The fair and orderly administration of justice favours deferral of the Tribunal’s processes until the conclusion of the concurrent grievance process.

10The Application will therefore be deferred pending the completion of the grievance process.

11The 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.

12I am not seized of this matter.