Sisay Assefa v. The Clarendon Foundation Cheshire Home Inc., 2011 HRTO 192

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sisay Assefa

Applicant

-and-

The Clarendon Foundation Cheshire Home Inc.

Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: January 26, 2011 Citation: 2011 HRTO 192 Indexed as: Sisay Assefa v. Clarendon Foundation Cheshire Home

1This Interim Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application alleges discrimination in employment on the grounds of disability.

2The Application was delivered to the respondent and to the Ontario Public Service Employees Union (OPSEU), the applicant’s union. The respondents filed a Response which included a Request that the Tribunal defer consideration of the Application pending the outcome of a union grievance procedure and a claim filed by the applicant with the Workplace Safety and Insurance Board (WSIB). The applicant objects to the Request. This Interim Decision deals with the Request to defer.

3From the documents filed by the parties, it appears that the applicant experienced a work-related injury on January 11, 2010. He filed a claim with the WSIB. There were a number of discussions over the ensuing months concerning a return to work. The applicant did return to work on July 5, 2010, but stopped work on October 28, 2010.

4On or about November 3, 2010, OPSEU filed a grievance on behalf of the applicant. The grievance alleged that the employer had taken the applicant off the work schedule without cause and also failed to provide modified work duties. The workplace parties had a meeting on November 24, 2010 to discuss the grievance. According to the minutes regarding this meeting (entitled Notes of Complaint Meeting), the applicant was to provide a current Functional Ability Form and, “subject to the provision of this form and its contents Mr. Assefa will be returned to work.”

5There is no information about whether this meeting resolved the grievance, but equally there is no indication that the grievance has been settled or withdrawn. There is no indication in the documents regarding the status of the applicant’s claim with the WSIB. The applicant has provided a letter from the WSIB dated February 17, 2010, indicating that his entitlement to benefits was suspended but there is no indication that the applicant has objected to that decision or otherwise pursued his claim with the WSIB.

6Based on the information currently available to the Tribunal, it is not clear that there is any basis to defer consideration of the Application on the basis of the WSIB proceeding. However, there is reason to consider deferral on the basis of the grievance procedure.

7The 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).

8The 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.

9In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance and there is no indication that the grievance has been settled or withdrawn. If the applicant believes, on conclusion of the grievance process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

10The Application will therefore be deferred pending the completion of the grievance process.

11The 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.