HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Maria Hercules
Applicant
-and-
Regional Municipality of Peel - Transhelp
Respondent
INTERIM DECISION
Adjudicator: Alan G. Smith
Indexed as: Hercules v. Peel Region - Transhelp
WRITTEN SUBMISSIONS BY:
Regional Municipality of Peel – Transhelp, Respondent Ann C. Dinnert, Counsel
Canadian Union of Public Employees, Local 966, Interested Party Paul O’Ryan, Counsel
INTRODUCTION
1This is an Application filed October 18, 2010, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, which alleges discrimination on the basis of disability in employment.
2This interim decision deals with a Notice of Tribunal Intent to Defer (NOID) by which the Application would be deferred pending the outcome of the ongoing workplace grievance-arbitration process undertaken by the applicant and the respondent.
3The Registrar delivered the NOID to the applicant, respondent and the applicant’s bargaining agent on April 15, 2011. In that correspondence, the parties and the bargaining agent were advised that written submissions with regard to the Request to Defer must be filed with the Tribunal by May 15, 2011.
4No submissions regarding the Request to Defer were received from the applicant.
5On May 6, 2011, the respondent advised that it agreed with deferral of the Application pending the outcome of the arbitration hearing of the applicant’s February 2, 2010 grievance, which is scheduled to begin on August 4, 2011.
6The applicant’s bargaining agent, Canadian Union of Public Employees, Local 966, advised on May 10, 2011, that it was also in agreement that deferral of the Application would be appropriate in the circumstances.
DECISION
7Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.
8While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application 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 (Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10, Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779).
9The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues: see Blackman v. Ontario (Minister of Community Safety and Correctional Services), 2009 HRTO 970 at para. 5. 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 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).
10A review of the grievance filed by the applicant and her union on February 2, 2010 reveals that it is virtually identical to the subject matter of the Application.
ORDER
11In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.
12I am not seized of this matter.
Dated at Toronto, this 1st, day of June 2011.
“Signed by”
Alan G. Smith
Member