Shirinbek v. Extendicare Inc., 2011 HRTO 1210

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shahin Shirinbek

Applicant

-and-

Extendicare Inc. and Sandy Hall

Respondents

-and-

Canadian Union of Public Employees, Local 1394

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: June 23, 2011

Citation: 2011 HRTO 1210

Indexed as: Shirinbek v. Extendicare Inc.

1The applicant filed an Application on December 10, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination respect to employment because of disability.

2On April 1, 2010, the respondent filed its Response and identified the applicant’s union, Canadian Union of Public Employees, Local 1394, as an affected party (the “Union”). The Tribunal provided a copy of the Application and Response to the affected party.

3On April 18, 2010, the Union filed a Request to Intervene. The Union seeks to intervene in this Application because the Union is the exclusive bargaining agent of employees working at the applicant’s workplace and the applicant is a member of the Union. The Union indicates that it has relevant information about the facts as alleged in the Application and that it recently filed a grievance on behalf of the applicant with respect to the respondents’ failure to accommodate the applicant’s disability. The Union seeks full standing at the hearing of the Application.

4On May 20, 2011, the Tribunal issued a letter directing the parties to file submissions with respect to the whether the Application should be deferred pending the conclusion of the grievance proceeding.

5On June 2, 2011, the Union filed a copy of the applicant’s grievance and, although it took no position with respect to the issue of deferral, the Union indicated that it anticipated that some or all of the issues raised in the Application will be addressed through the grievance process.

6On June 6, 2011, the applicant wrote to the Tribunal and indicated that she is seeking the Application be deferred.

7The respondents did not file a response regarding the issue of deferral.

8Neither party filed submissions regarding the Union’s Request to intervene.

REQUEST TO INTERVENE

9As the Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

10Based on the material submitted by the Union, I am satisfied that the Union has an interest in the outcome of the Application and relevant information regarding the facts alleged in the Application. As such, in accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by a union, the Union’s Request to Intervene is granted.

DEFERRAL

11The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same subject matter of the application. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

12The Union indicates that the Application and grievance overlap with respect to the facts and issues. The applicant agrees that the Application should be deferred. In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the grievance arbitration.

CONCLUSION

13The Tribunal orders that this Application be deferred pending the conclusion of the grievance arbitration. 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 with Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

14The Tribunal orders that the Union’s Request to Intervene is granted. Given the Tribunal’s decision to defer, the extent and the nature of the Union’s participation in this proceeding can be determined when and if the matter is brought back before the Tribunal.

15I am not seized.