Human Rights Tribunal of Ontario
B E T W E E N:
Michelle Perkins
Applicant
-and-
Canadian Red Cross
Respondent
INTERIM DECISION
Adjudicator: Alan G. Smith
Indexed as: Perkins v. Canadian Red Cross
WRITTEN SUBMISSIONS BY:
Canadian Union of Public Employees, ) Paul O’Ryan, Representative
Local 5039, Affected Party )
INTRODUCTION
1This is an Application filed February 1, 2011, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2This Interim Decision deals with a Notice of Tribunal Intent to Defer by which the Application would be deferred pending the outcome of the ongoing workplace grievance-arbitration process undertaken by the applicant and the respondent employer.
3The Registrar delivered a Notice of Tribunal Intent to Defer to the applicant and respondents on May 25, 2011. In that correspondence the parties were advised that written submissions with regard to the Tribunal Intent to Defer must be filed with the Tribunal by June 25, 2011.
4Submissions were not received from either of the parties.
5On June 23, 2011, the applicant’s bargaining agent, Canadian Union of Public Employees, Local 5039, (CUPE) filed submissions in support of deferral. CUPE stated:
On the Applicant’s behalf, the local union earlier filed a grievance against the Responding Party, ie., The Canadian Red Cross Society, which addresses the same subject-matter of the within Application (the “Accommodation Grievance”). The Accommodation Grievance is currently scheduled for hearing before arbitrator Barry Fisher, on November 24, 2011. It is anticipated that all of the outstanding human rights issues raised in both the Application and the Accommodation Grievance will be addressed at arbitration.
ANALYSIS
6Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.
7While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type 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, Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 and Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.
8The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues: Blackman v. Ontario (Minister of Community Safety and Correctional Services), 2009 HRTO 970. 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 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, and Colella v. Toronto Catholic District School Board, 2011 HRTO 1289.
9A review of the grievance filed by CUPE, particularly on the matter of the termination of the applicant’s employment January 7, 2011, reveals it is virtually identical to the subject matter of the Application.
ORDER
10In these circumstances, I find that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration process. 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 to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.
11I am not seized of this matter.
Dated at Toronto, this 29th day August, 2011.
‘Signed by”
Alan G. Smith
Member