Human Rights Tribunal of Ontario
B E T W E E N:
Simona Lombardo Applicant
-and-
William Osler Hospital Respondent
INTERIM DECISION
Adjudicator: Brian Cook Date: January 18, 2011 Citation: 2011 HRTO 120 Indexed as: Lombardo v. William Osler Hospital
1This is an Application filed on August 9, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.
2The applicant indicated in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and provided a copy of the grievance filed on her behalf by her union, the Service Employees International Union (the “union”).
3On October 26, 2010, the Tribunal sent the parties a Notice of Intent to Defer because, from the Application, it appeared that there was an ongoing grievance dealing with the subject-matter of the Application. The applicant, respondent, and the union were invited to make submissions by November 26, 2010 as to why consideration of the Application should or should not be deferred. No submissions have been received.
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 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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.
5The 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.
6In this case, it is appears 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 has not responded to the Notice of Intent to Defer. The Tribunal therefore has no information about the status of the grievance. There is also no basis to think that the normal approach should not be followed in this case. The Application will therefore be deferred pending the completion of the grievance process.
7The 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.
Dated at Toronto, this 18th day of January, 2011.
”signed by”_______________
Brian Cook Vice-chair