Lourenco v. Hamilton Health Sciences, 2011 HRTO 1483

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aida Lourenco Applicant

-and-

Hamilton Health Sciences, Rebecca Ballantyne, Edie Stewart, Patricia Yaremko, Canadian Union of Public Employees Local 7800, Dave Murphy and Bill Ferguson Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: August 8, 2011 Citation: 2011 HRTO 1483 Indexed as: Lourenco v. Hamilton Health Sciences

1The applicant filed an Application with the Tribunal under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 13, 2010 alleging discrimination and reprisal with respect to employment and membership in a vocational association on the basis of disability. The applicant alleges that the respondent employer has failed to provide her with suitable modified work and that the respondent union has failed to facilitate accommodation. The Application narrative indicates that the applicant has a number of workplace grievances regarding alleged failure to accommodate.

2On April 29, 2011, the respondent union filed its Response, wherein it requests that the Application be deferred because there are outstanding workplace grievances. The respondent union also asks that two personal respondents be removed from the Application and that it be granted intervenor status with respect to the Application as against the respondent employer.

3On May 27, 2011, the respondent employer filed its Response and a Request for Order During Proceedings (“Request”) asking the Tribunal to defer the Application because the applicant has filed 5 grievances regarding the events raised in the Application, of which 2 are being processed and 2 are scheduled for an arbitration hearing in September 2011 before Arbitrator Lorne Slotnick.

4On June 22, 2011, the Tribunal delivered the Response to the applicant and issued a Notice of Intent to Defer pending the resolution of grievance proceedings dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal directed the applicant to file submissions no later than July 6, 2011 as to why consideration of the Application should or should not be deferred.

5On May 27, 2011, the applicant filed submissions in response to the respondent employer’s Request to defer and filed reply submissions to both Responses on July 13, 2011. The applicant opposes deferal. The applicant points out that the subject of her grievances relate to the respondent employer’s failure to provide workplace accommodation and do not involve the respondent union. The applicant submits, therefore, that the issues and remedies sought in the Application as against the union are not the same as raised by the grievances.

DEFERRAL

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). 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.

7Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types 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. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

8The submissions, and information contained in the Tribunal’s file, confirm that there is an arbitration hearing scheduled to proceed in September 2011 before an arbitrator experienced with human rights issues. The Supreme Court of Canada has affirmed that grievance arbitrators not only have 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). As such, the Tribunal will generally defer an application where there is an ongoing grievance or arbitration under a collective agreement based on the same facts and issues.

9I see no reason to depart from this approach. In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievances. I understand the applicant’s submission that the union is not a respondent party in the grievance as it is in the Application. While the applicant’s grievances are not filed against her union, the union does have role in those concurrent proceedings. The applicant’s grievances specifically allege violations of the Code. The interrelated nature of the grievance arbitration and the Application is acknowledged by all parties as all parties have referred to the same facts leading to grievance meetings, mediations and arbitration as forming the basis of the Application. The arbitrator will make findings of facts regarding the applicant’s disbility and restrictions, as well as the events surrounding the applicant’s requests for accommodation and applications for jobs which underlie the facts of the Application. Given the existence of concurrent proceedings and the risk of inconsistent findings of fact and law with respect to the same issues, the Tribunal determines that the most fair, just and expeditious approach is to defer consideration of this Application in these circumstances.

ORDER

10The Tribunal orders the deferral of the Application pending the conclusion of the applicant’s grievance arbitration. Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

11In light of the decision to defer this Application, it is not necessary at this stage to address the union’s request to intervene and request to remove two personal respondents.

12I am not seized of this matter.