Kerry Stillwell v. Tak Kwan, 2011 HRTO 2080

Human Rights Tribunal of Ontario

B E T W E E N:

Kerry Stillwell Applicant

-and-

Tak Kwan Respondent

interim decision

Adjudicator: Keith Brennenstuhl Date: November 14, 2011 Citation: 2011 HRTO 2080 Indexed as: Stillwell v. Kwan

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.

2In her Application, the applicant stated that the facts of the Application were part of a union grievance still in progress.

3On August 12, 2011, the respondent filed a Request for Order During Proceedings seeking the deferral of the Application pending the conclusion of the grievance proceeding under the collective agreement between the Power Workers, Union and Hydro One Networks Inc., the respondent’s employer. The respondent seeks the deferral on the basis that the facts giving rise to the Application are substantially the same as the facts of the Applicant’s grievance.

4The applicant opposes the deferral arguing among other things that the grievance arbitrator does not have the authority to rule on human rights violations.

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 (Perry 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 applicant’s submissions on deferral 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.

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.