Tuomela v. Sault Area Hospital, 2011 HRTO 1601

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sophia Tuomela

Applicant

-and-

Sault Area Hospital

Respondent

-and-

National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW Canada)

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: August 26, 2011

Citation: 2011 HRTO 1601

Indexed as: Tuomela v. Sault Area Hospital

1The Tribunal issued Interim Decision 2011 HRTO 1347 directing the parties to file written submission with respect to the following issues:

• What is the status of the applicant’s grievance(s)? Specifically, are the grievance(s) settled, alive or lapsed? If settled, what was the nature, terms and conditions of the settlement and exactly what was resolved and what remains outstanding? If the grievance(s) is alive, what stage is/are the grievance(s) at? If lapsed, can the grievance(s) be reactivated;

• If any of the grievance(s) were settled, did the settlement appropriately dealt with the substance of some or all of the substance of the Application pursuant to section 45.1 of the Code?

• All parties are also required to advise whether they are agreeable mediation.

2The respondent and the intervenor filed submissions in accordance with the Interim Decision. The respondent submits that the applicant’s accommodation grievance should proceed to arbitration and that it waives timelines in order to permit referral for arbitration. The applicant did not file submissions in response to the Interim Decision; however, the applicant previously submitted that her accommodation concerns remain outstanding. The applicant indicated that, because the respondent refused to participate in grievance mediation, the Tribunal process is the only recourse available to her.

3The 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.

4Based on the information in the file and the submissions provided by the parties and the intervenor, it appears that the applicant’s accommodation grievance remains outstanding and that the respondent is amenable to proceeding with arbitration with respect to that matter. There appears to be significant overlap between the facts and issues in the Application and the outstanding grievance.

5As such, the applicant’s accommodation grievance remains outstanding and it appears that this grievance may be referred to arbitration. Given the possibility of concurrent proceedings and inconsistent findings of fact and law, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application in these circumstances. The Tribunal determines that it is appropriate to defer this Application pending the conclusion of the grievance/arbitration process.

6I appreciate that the applicant may be dissatisfied with how the grievance process has evolved thus far; however, there is no indication that the human rights issues will not be resolved or dealt with at the arbitration hearing. 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).

ORDER

7The Application will therefore be deferred pending the completion of the grievance/arbitration process. Given the decision to defer the Application, it is not necessary at this stage to consider the respondent’s request to dismiss some or all of the Application as appropriately dealt with by another process. The respondent may renew its request if this Application is reactivated.

8The 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 process.

9I am not seized.