McTaggart v. Riverside Healthcare Facilities, 2011 HRTO 1059

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pamela McTaggart

Applicant

-and-

Riverside Healthcare Facilities Inc.

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: June 2, 2011

Citation: 20011 HRTO 1059

Indexed as: McTaggart v. Riverside Healthcare Facilities

1This Interim Decision deals with the whether to defer this Application pending the outcome of a grievance filed by the applicant.

2The applicant filed this Application on March 16, 2011, alleging discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Her Application concerns the treatment of her by her employer up to and including the termination of her employment on March 17, 2010.

3The applicant also names her union, the Canadian Union of Public Employees, Local 65 ("CUPE"), as a respondent. As pointed out by CUPE in its response, the only allegation against it is as follows:

I spoke to my union about filing a grievance and they refused. I was told they would not pursue a grievance they could not win and that I needed to get medical clearance to return to my regular duties in order to win. My union has done nothing to protect my rights through this entire process.

4However, both the employer and CUPE attach a grievance signed by the applicant challenging her discharge, dated March 23, 2010, to their respective Responses to the Application. CUPE submits that the grievance is ongoing, and has only been delayed because the applicant has failed to supply required information, which it has repeatedly requested of her.

5The employer requests that the Tribunal defer its proceedings until the grievance process is complete in its Response. In her Reply, the applicant states that she opposes the deferral request, but makes no further submissions concerning why she opposes deferral. Moreover, she does not dispute CUPE's factual statements concerning the existence of a grievance or the reason for the delay.

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.

9The grievance process was initiated almost a year before the Application. This would mediate in favour of deferral. In the absence of submissions from the applicant concerning why deferral is not appropriate, there appears to be no reason for not following the Tribunal's "normal approach." Accordingly, the Application will be deferred pending the completion of the grievance process.

10The 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.