Human Rights Tribunal of Ontario
Between:
Cindy Haddow Applicant
-and-
Collingwood General and Marine Hospital Respondent
Interim Decision
Adjudicator: Sheri D. Price Date: May 4, 2010 Citation: 2010 HRTO 975 Indexed as: Haddow v. Collingwood General and Marine Hospital
1In this Application, filed pursuant to s. 34 of the Ontario Human Rights Code, RSO c. H.19, as amended, ("the Code"), the applicant alleges that she was discriminated against by the respondent on the basis of disability in respect of employment.
2The purpose of this Interim Decision is to address the respondent's failure to file a complete Response to the Application. It also seeks submissions from the parties with respect to whether the Tribunal ought to defer consideration of this Application pending the conclusion of the grievance and arbitration procedure in respect of grievances which raise some or all of the same facts and issues as the Application.
Failure to file a complete Response
3The Application was filed on September 30, 2009. The respondent filed a timely yet incomplete Response to the Application on December 29, 2009.
4On March 2, 2010, the Tribunal wrote to the respondent indicating that its response was incomplete and could not be accepted at that time because the respondent had not indicated on the Response form whether it was seeking deferral of the Application based on outstanding grievances filed on behalf of the applicant by her trade union, Ontario Public Service Employees Union, Local 347. The Tribunal directed the respondent to answer the specific question on the Response form about whether it was seeking deferral of the Application and to return the completed Response to the Tribunal on or before March 22, 2010.
5The respondent did not file a completed Response in response to the Tribunal's March 2, 2010 letter. The Tribunal's correspondence to the respondent has not been returned.
6However, having reviewed the Response which was filed with the Tribunal in December 2009, I am satisfied that it is sufficiently complete to be accepted by the Tribunal. The respondent's failure to clarify whether it is seeking deferral of the Application is not material to the Response. Pursuant to Rule 14.1 of the Tribunal's Rules of Procedure, the Tribunal may defer consideration of an Application on its own initiative or at the request of any party (Rule 14.1). In this case, the respondent has not requested deferral of the Application. However, I have determined, based on the information filed with the Application and Response, that it is appropriate for the Tribunal to seek submissions from the parties with respect to whether the Application ought to be deferred.
Deferral of the Application
7Documents filed with the Response indicate that the applicant's trade union filed two grievances in August and September 2009 on the applicant's behalf alleging discrimination and harassment contrary to the Code regarding the August 2009 payout of the applicant's vacation hours and the respondent's alleged failure to accommodate the applicant's disability at work.
8The two grievances were referred to arbitration before Arbitrator Pamela Chapman on December 2, 2009.
9The Application filed on September 30, 2009 alleges that the respondent failed to accommodate the applicant's disability at work. In her Application, the applicant acknowledges that the facts of the Application are part of the grievance proceeding which is still in progress.
10Deferral of an Application seeks to ensure that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See: Klein v. Toronto Zionist Council, 2008 HRTO 189.
11The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application. The Tribunal will give the parties an opportunity to make submissions on the deferral issue before making a determination in this regard.
Order
12The Tribunal accepts the Response filed by the respondent. The Tribunal will send a copy of the respondent's Response to the applicant and to the applicant's trade union.
13Within 14 days of the date of this Interim Decision, the applicant and her trade union are each directed to send to the respondent and file with the Tribunal their written submissions with respect to whether they submit that the Tribunal ought to defer consideration of the Application pending the conclusion of the grievance and arbitration procedure in respect of the applicant's 2009 grievances and the reasons for their positions. The respondent is directed to provide its written submissions on the issue within 21 days of the date of this Interim Decision.
14The Tribunal will determine whether to defer the Application, upon receipt and consideration of the submissions of the parties to the Application and the applicant's trade union (Rule 14.2).
15I am not seized of this matter.
Dated at Toronto, this 4th day of May, 2010.
"Signed By"
__________________________________
Sheri Price Vice-chair