Amber Lynn Perrault v. Providence Care Mental Health Services, 2011 HRTO 1894

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amber Lynn Perrault

Applicant

• and-

Providence Care Mental Health Services,

Carol Mieras and Rob McDonnell

Respondents

INTERIM DECISION

Adjudicator: Ian R. Mackenzie

Date: October 19, 2011

Citation: 2011 HRTO 1894

Indexed as: Perrault v. Providence Care Mental Health Services

1The applicant, Amber Lynn Perrault, filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code") alleging discrimination in employment on the basis of disability. The Tribunal issued a Notice of Intent to Defer the Application on June 24, 2011 pending the conclusion of another related proceeding. The Ontario Public Service Employees Union, Local 431 (the "union") has filed grievances against the respondent Providence Care Mental Health Services on behalf of the applicant. The Tribunal sought submissions from the parties in respect of the Notice of Intent to Defer.

2The respondents provided written submissions. No submissions were received from the applicant or the union.

3The applicant has alleged in her Application that Providence Care Mental Health Services has failed to accommodate her disability and that the denial of sick leave benefits is discriminatory. She has also alleged harassment by the named personal respondents Carol Mieras and Rob McDonnell. The applicant has filed thirteen grievances that relate to the same allegations as set out in her Application. These grievances relate to the alleged discrimination and harassment that was the subject of an investigation by the employer; her accommodation upon her return to work; her treatment by the employer on her return to work; and the denial of sick leave benefits. The grievances also specifically allege breaches of the Code.

4The grievances are scheduled for a hearing before an arbitrator on November 2, 2011.

5The respondents submit that it is appropriate to defer the Application in light of the fact that the thirteen grievances rely on the same facts and allegations as are contained in the Application. They also submit that these issues will be dealt with at the arbitration hearing.

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 means that the matter will normally not be dealt with further by the Tribunal unless a party requests that it do so within 60 days following the completion of the other proceeding (Rule 14.4). 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. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

7The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and 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).

8The facts and issues raised by this Application are part of a grievance process that is still in progress. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application. In this case, the grievance hearing is scheduled for November 2, 2011 and is likely to be the most expeditious way of proceeding. Since the allegations set out in the Application are the same ones that are before the grievance arbitrator it is also fair and just that the Application be deferred.

9The Tribunal orders the deferral of the Application pending the conclusion of the grievance process.

10Where 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).

11I am not seized.