Kimberly Therrien v. Canadian Red Cross Society and Nora Nelson, 2011 HRTO 1734

Human Rights Tribunal of Ontario

Between:

Kimberly Therrien Applicant

-and-

Canadian Red Cross Society and Nora Nelson Respondents

Interim Decision

Adjudicator: Naomi Overend Date: September 21, 2011 Citation: 2011 HRTO 1734 Indexed as: Therrien v. Canadian Red Cross Society

1This Application was filed on May 25, 2011 alleging discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant discusses in this Application that the facts of the Application are also part of two grievances that were commenced in February 2011 by her union, the Service Employees International Union, Local 1 (“SEIU”).

2This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of the grievance proceeding with respect to these two grievances. In their Response, the respondents requested that the Tribunal defer the Application pending the completion of the grievance proceeding. The applicant indicated in her Reply that she was opposed to deferral.

3The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

4The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. 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 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).

5The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

6In this case, the Application describes events that took place in the late fall/early winter of 2010 - 2011 in which she alleges that she was engaged in a dispute with a co-worker and management. Initially she alleges that she was taken off the favourable day shift and put on rotating shifts and then she indicates that she was “constructively dismissed” when she was removed from the supportive housing program for which she had been working and put on casual part-time hours working in the community.

7The applicant indicates in her Application that she filed grievances with respect to both the change in shifts and the removal from the supportive housing program. These grievances were filed on February 7 and February 22, 2011 respectively. The respondents advise in their Response that an arbitrator had been appointed although as of the date of the Response (July 13, 2011) no dates for arbitration had been set.

8It is clear from reading the Application, Response and Reply that the issues in the grievances and the Application arise from the same complex web of workplace allegations. Many of those issues raise the Code peripherally or not at all. The arbitrator will be in the best position to address the full range of interactions and allegations raised by this alleged workplace breakdown.

9Moreover, the grievances were filed three months earlier than the Application. An arbitrator has apparently already been appointed and so the proceeding has already commenced.

10The applicant appears to oppose deferral in her Reply. She states: “There is no corresponding grievance based on the discrimination on the basis of disability [that] forms part of this application.” On the face of the grievance dealing with the removal of the applicant from the supportive housing program, there is nothing limiting the scope of it. Indeed under the heading “Particulars of Grievance” the following is alleged: “unjust discipline, violation of article 8 and/or any other pertinent articles, past practices or Statutes [emphasis added].”

11In view of these facts, the Application will be deferred pending the completion of the grievance process. If, in fact, the applicant is of the view that the grievance process fails to address her human rights issues, she can request to reactivate her Application. 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 process.

12The applicant has indicated that she wishes to amend her Application to include further facts. She may bring a Request for Order During Proceedings (Form 10) to amend the Application should her Application be brought back on.

13I am not seized of this matter.