Human Rights Tribunal of Ontario
B E T W E E N:
Christine Lemay
Applicant
-and-
Carlingview Manor (Revera Living)
Respondent
interim decision
Adjudicator: Keith Brennenstuhl
Indexed as: Lemay v. Carlingview Manor (Revera Living)
1This is an Application filed on May 9, 2011 under s. 34 of the Human Rights Code R.S.O. 1990, c. H. 19 as amended (the “Code”). The applicant alleges discrimination with respect to employment because of disability. She claims that the respondent has failed to accommodate her return to work
2In her Application, the applicant stated that the facts of the Application were part of a union grievance still in progress. The applicant filed a grievance dated June 6, 2011 pursuant to the collective agreement between the Ontario Nurses Association and the respondent. The grievance reads, “I grieve that the employer is refusing to accommodate me back into my job as staff nurse in violation of their statutory obligations under the HRCO and the collective agreement.”
3On September 27, 2011 the Tribunal issued a Notice of Intent to Defer the Application pending the conclusion of the grievance proceedings.
4The respondent supports the deferral on the basis that the issues in the grievance are substantially the same as the issues raised before the Tribunal in this Application. The applicant opposes deferral noting, among other things, her dissatisfaction with the grievance process.
5The Tribunal generally defers applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In adopting 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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.
6In the present matter it is apparent that there is a substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The concerns the applicant raises do not, in my view, justify a departure from the Tribunal’s normal approach, which is to defer pending conclusion of the grievance process.
7The Application will be deferred pending the resolution of the grievance. The respondent need not file a full Response at this time.
8Where a party wishes to proceed with an application which has been deferred, the party must make a Request for Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).
9I am not seized.
Dated at Toronto, this 9th day of November, 2011.
”signed by”______________
Keith Brennenstuhl
Vice-chair