Stannie Laws Muir v. Humber River Regional Hospital and Ester Correa, 2011 HRTO 1943

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stannie Laws Muir

Applicant

-and-

Humber River Regional Hospital and Ester Correa

Respondents

INTERIM decision

Adjudicator: Ena Chadha

Date: October 27, 2011

Citation: 2011 HRTO 1943

Indexed as: Muir v. Humber River Regional Hospital

WRITTEN SUBMISSIONS BY

Stannie Laws Muir, Applicant ) Self-Represented

Humber River Regional Hospital and ) Daryn M. Jefferies, Counsel

Ester Correa, Respondents ) )

1The applicant filed an Application on July 21, 2011 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment on the basis of disability. The applicant alleges that the respondents discriminatorily denied him sick leave benefits and declined to issue his Record of Employment.

2In his Application, the applicant noted that there were on-going workplace grievances regarding the events raised in the Application and that he filed these grievances in order to seek redress through other avenues; however, it was to no avail. The applicant attached copies of two grievances.

3The purpose of this Interim Decision is to deal with the issue of whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of the outstanding grievances.

4On September 9, 2011, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject matter of the Application. The Tribunal invited the applicant, the respondent and the applicant’s union, Service International Employees Union Local 1 Canada (“SEIU”), as an affected party to file submissions no later than October 10, 2011 as to why consideration of the Application should or should not be deferred.

5The applicant and the respondent filed submissions in response to the Notice of Intent to Defer. No submissions were received from the applicant’s union.

PARTIES’ SUBMISSIONS

6The applicant submits that the Tribunal should not defer the Application because SEIU has been replaced by another union to represent the bargaining unit. The applicant believes that, as a result of this change in union representation, he will not receive satisfactory support from SEIU and that his grievances will be abandoned.

7The respondents allege that the Application should be dismissed because the allegations do not raise Code-related concerns. In the alternative, the respondents submit that the Application should be deferred because there are on-going grievances with respect to same facts and issues raised in the Application. Specifically, the respondents indicate that the SEIU, which has carriage of the grievances, held a grievance meeting on July 14, 2011.

ANALYSIS AND FINDINGS

8The 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 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.

9The Tribunal will generally defer an application where there is an on-going grievance under a collective agreement based on the same facts and issues. 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).

10The Tribunal will 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. Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types 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 Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

11Based on the materials submitted with the Application, it appears that the grievances were filed prior to the Application and that the grievances raise similar facts and issues as in the Application, specifically the allegations with respect to the failure to pay sick leave benefits and the Record of Employment. As such, the allegations raised in this Application are part of grievance proceedings that are still in progress.

12In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the applicant’s grievances.

13The 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 processes.

14I am not seized of this matter.