Vasquez v. Mount Sinai Hospital, 2011 HRTO 1353

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Juan Vasquez

Applicant

-and-

Mount Sinai Hospital, Christopher Ross, Ellen Papaikonomou, Maryana Malfara, Maureen Wong Chong and Robin Singh

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: July 18, 2011

Citation: 2011 HRTO 1353

Indexed as: Vasquez v. Mount Sinai Hospital

1The applicant filed an Application on January 27, 2011 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment on the basis of disability, sex and sexual orientation, association with persons identified by a Code ground, record of offences and reprisal. The Application indicates that the facts of the Application are part of grievances.

2On April 21, 2011, the applicant filed a request to add an additional personal respondent, his supervisor.

3The respondents filed a Response on May 20, 2011, wherein they request the Application be dismissed pursuant to section 45.1 of the Code as appropriately dealt with by a grievance settlement/withdrawal and/or deferred because of an ongoing grievance. The respondents oppose the applicant's request to add an additional personal respondent.

4On May 24, 2011, the Tribunal issued a Notice of Intent to Dismiss or Defer. The Tribunal directed the applicant to file submissions as to why the Application should or should not be dismissed or deferred.

5The applicant filed reply submissions on July 4, 2011 and submits that the Application should not be dismissed because he believes the allegations have merit. The applicant indicates that grievance arbitration is pending.

DECISION

6The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

7The applicant appears to acknowledge that the facts of his Application are part of an ongoing workplace grievance. The applicant submitted copies of various grievances and documentation that confirms one grievance is proceeding to arbitration.

8The respondents submit that the certain aspects and allegations of the Application are the same as the grievance presenting proceeding to arbitration, as well as other outstanding grievances. The respondents indicate that the parties have agreed upon an arbitrator and that dates for a hearing are being considered by the parties.

9In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the applicant's grievance arbitration. 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).

REQUEST TO DISMISS

10Given the decision to defer the Application, it is not necessary at this stage to consider whether or not part of the Application should be dismissed as appropriately dealt with by another proceeding pursuant to s.45.1 of the Code. Should this Application be reactivated, the respondents may ask the Tribunal to consider the application of section 45.1 and their request to dismiss at that time.

REQUEST TO ADD A RESPONDENT

11The Application presently identifies a number of the applicant's co-workers as personal respondents. The Tribunal has removed or refused to add personal respondents when the alleged actions and omissions of the personal respondent were carried out strictly in their capacity as officers or employees of a corporate respondent and their personal conduct was not in issue. At this time, it is unclear to what extent the applicant is alleging the personal respondents' and proposed personal respondent's behaviours were outside of their workplace duties.

12Given the decision to defer the Application, it is not necessary at this stage to consider the applicant's request to add a personal respondent. Should this Application be reactivated and be allowed to proceed, the applicant may ask the Tribunal to consider the request to add a respondent at that time.

ORDER

13The Application will therefore be deferred pending the completion of the grievance arbitration. The 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 arbitration.

14I am not seized of this matter.