Dorothy Rice v. St. Peter’s Residence at Chedoke, 2011 HRTO 2017

Human Rights Tribunal of Ontario

B E T W E E N:

Dorothy Rice

Applicant

-and-

St. Peter’s Residence at Chedoke, Janet Hayes and Karen Pow

Respondents

-and-

Canadian Union of Public Employees and its Local 7780

Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend

Date: November 7, 2011

Citation: 20011 HRTO 2017

Indexed as: Rice v. St. Peter’s Residence at Chedoke

Reasons for Decision

1The applicant filed this Application on April 15, 2011, alleging discrimination in employment on the basis of disability contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant, who is a member of CUPE Local 7780 (“CUPE”), filed a grievance with respect to the allegations of discrimination found in her Application.

2CUPE filed a Request to Intervene (Form 5) on August 23, 2011. None of the other parties responded to this Request.

3In its Response, filed on August 30, 2011, the respondents asked the Tribunal to defer consideration of the Application until such time as the grievance proceeding had concluded. The Tribunal specifically brought this request to the attention of the applicant when it served the Response on her. Moreover, the respondents also filed a Request for Order During Proceedings (Form 10) in which it made a deferral request

4The applicant did not file any submissions with respect to the issue of deferral. CUPE filed a Response to a Request for Order (Form 11) in which it advised that it was taking no position with respect to the issue of deferral. It did advise, however, that CUPE had filed a grievance in which some or all of the applicant’s “complaints” were raised, and noted that it “anticipated that the Applicant’s grievance will be resolved with the assistance of an independent arbitrator appointed by the parties…”.

REQUEST TO INTERVENE

5The Tribunal has found on numerous occasions that a union nearly always has an interest in an application brought by a member of one of its bargaining units and that, absent exceptional circumstances, will be granted intervention status when it so requests it. There are no exceptional circumstances in this case.

6Accordingly, CUPE is granted leave to intervene. Should the Application proceed to hearing, the scope of CUPE’s intervention will be determined by the adjudicator hearing the matter.

REQUEST TO DEFER

7The 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.

8The 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.).

9The 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.

10Given that there is significant overlap in the grievance and this Application, and given the absence of any opposition by the applicant, the Tribunal is of the view that deferral to the grievance process is appropriate. The Application will 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. Any outstanding Requests for Order will be addressed should the matter be brought back on.

ORDER

12CUPE is granted leave to intervene.

13The Application is deferred pending the completion of the grievance process.

14I am not seized of this matter.