Hadissi v. Children’s Aid Society of Toronto, 2011 HRTO 1743

Human Rights Tribunal of Ontario

Between:

Fereshteh Hadissi Applicant

-and-

Children’s Aid Society of Toronto Respondent

Interim Decision

Adjudicator: Eric Whist Date: September 22, 2011 Citation: 2011 HRTO 1743 Indexed as: Hadissi v. Children’s Aid Society of Toronto

1This Application, filed on July 8, 2011, alleges discrimination in employment on the basis of disability contrary to section 5 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a grievance arbitration and a further proceeding before the Workplace Safety and Insurance Board (“WSIB”).

2The Application states that the facts of the Application are part of two grievances that are scheduled for an arbitration hearing on February 12, 2012. The Application also states that the applicant has appealed a decision by the WSIB that she is able to return to work as part of a graduated work plan given her medical status. This appeal is currently pending before the WSIB.

3On August 16, 2011 the Tribunal issued a Notice of Intent to Defer in which it indicated that it might be appropriate for the Tribunal to defer consideration of the Application pending the resolution of other legal proceedings.

4On September 2, 2011 the respondent filed written submissions with the Tribunal on the issue of deferral. The respondent requested that the Application be deferred pending both the arbitration hearing of the two grievances and a decision by the appeals branch of the WSIB or a final determination by the Workplace Safety and Insurance Appeal Tribunal as to whether the applicant‘s current medical status allows her to return to work on a graduated return to work plan.

5On September 15, 2011 the applicant filed written submissions with the Tribunal. The applicant agreed that the Application should be deferred pending the outcome of the arbitration hearing but opposed any further deferral to await the outcome of WSIB proceedings arguing that this would impose undue delays for the Application. In the alternative, the applicant submitted the Tribunal could order a deferral of the Application until completion of the grievance arbitration process, leaving the determination as to whether to order a deferral to the WSIB proceedings to a later date, if necessary.

DECISION

6The Tribunal may defer consideration of an application on such terms as it may determine and on its own initiative. See Rule 14.1 of the Tribunal’s Rules of Procedure. Deferral 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. In considering whether to defer an application the Tribunal will look at 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 to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

7Both parties submit that the Application should be deferred until the outcome of the grievance arbitration process. I agree. The Tribunal’s general practice is to defer applications when there is an ongoing grievance under a collective agreement based on the same facts and issues as raised in an application, as is the case here. Grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights. I further note that in this case a grievance arbitration date has already been set.

8The respondent has also requested the Application be deferred pending the applicant’s appeal of a WSIB decision. I am of the view, as was the Tribunal in a similar case, Willison v. Flex-N-Gate Seeburn, 2011 HRTO 1343, that it is not necessary to address this request at this time. The outcome of the grievance arbitration may have a bearing on this further request to defer. The respondent may renew this request if and when the Application is brought back on.

9The Tribunal directs the parties’ attention to Rule 14 of the Tribunal’s Rules of Procedure which sets out the procedure if a party wishes to proceed with an application that has been deferred pending the conclusion of another proceeding.

10I am not seized of this matter