Virginia MacDonald v. Disabled and Aged Regional Transit System, 2011 HRTO 2118

Human Rights Tribunal of Ontario

Between:

Virginia MacDonald, Applicant

-and-

Disabled and Aged Regional Transit System, Respondent

Interim Decision

Adjudicator: Mary Truemner Date: November 22, 2011 Citation: 2011 HRTO 2118 Indexed as: MacDonald v. Disabled and Aged Regional Transit System

1This is an Application filed on July 8, 2011 alleging discrimination because of disability with respect to employment under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Interim Decision deals with the respondent's Request to defer the Application pending the completion of a grievance proceeding.

2The applicant indicates in the Application that the facts of the Application are part of a grievance that is still in progress, filed on her behalf by her union, the Canadian Union of Public Employees, Local 5167 (the "union"). Although the applicant indicated in her Application that she was not asking to defer the Application to any grievance proceedings, she did not file submissions in response to the respondents' Request for deferral, nor a Reply to the respondents' Response in which the respondents reiterate their position that the Application should be deferred. The union filed a Request to Intervene, explaining that the grievance alleges that the respondent "failed to accommodate the Applicant within her restrictions," and that the parties are setting up mediation through the grievance process. The union did not take a position on whether or not deferral to the grievance proceedings was appropriate.

3The Tribunal may defer consideration of an application, on such terms as it may determine, at the request of any party (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.

4The Tribunal, however, 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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

5The grievance involves the same allegation of discrimination because of disability that are raised in the Application. In the circumstances, particularly where there is no opposition to the respondent's Request to defer, the Application will be deferred pending the completion of the grievance proceeding.

6The 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 proceedings.