Koehler v. Therapeutic & Educational Living Centres, 2011 HRTO 2184

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sherry Koehler Applicant

-and-

Therapeutic & Educational Living Centres Inc. Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty Date: December 5, 2011 Citation: 2011 HRTO 2184 Indexed as: Koehler v. Therapeutic & Educational Living Centres

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent discriminated against her in employment based on disability. She also alleges reprisal or threat of reprisal. In essence, the applicant states that the respondent disclosed personal information about her. She also refers to workplace harassment and to disciplinary measures.

2In the Application, the applicant indicates that events described in the Application are also the subject of a grievance arbitration, scheduled for hearing in August 2011.

3On August 24, 2011, the Tribunal administratively issued a Notice of Intent to Defer. The Tribunal wrote that it may be appropriate to defer the consideration of the Application pending the resolution of the grievance proceeding. It invited submissions from the parties and the Canadian Union of Public Employees Local 1521-03 (“Union”) regarding the deferral issue.

4Although the applicant has filed a number of documents and letters since August 24, 2011, the applicant’s position regarding the deferral issue is unclear. She indicates that she wishes to attend a settlement meeting. This appears to be a reference to settlement discussions that had been scheduled in the context of an ongoing grievance.

5The Union and the respondent have also filed submissions. Both argue that deferral is appropriate in the circumstances.

6The respondent states that the subject-matter of the Application is being dealt with in grievance proceedings and before the Workplace Safety and Insurance Board (“WSIB”). It states that the Union filed two grievances on the applicant’s behalf. The first relates to a letter of discipline and was withdrawn following an agreement between the Union and the respondent. The second relates to disclosure of the applicant’s personal information, including a summary of the applicant’s sick leave. The second grievance has been referred to arbitration. The August 2011 arbitration date was rescheduled because of ongoing settlement discussions. According to the respondent, the arbitration will likely be rescheduled to March or April 2012.

7The respondent states that the applicant has also filed a claim with the WSIB alleging workplace harassment resulting in a pyschotraumatic disability. The WSIB claim also relates to the disclosure of her personal information. The WSIB has denied the applicant’s claim. The applicant has, however, filed an objection to the Board’s decision.

8The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. This is because 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 Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970, 2009 HRTO 970. The Tribunal may also defer an application where the facts and issues raised in an application are also being addressed by another administrative Tribunal, such as the WSIB: See Gibson v. Arc Resources Canada, 2009 HRTO 624, 2009 HRTO 624, Mahjour v. Joe Singer Shoes, 2010 HRTO 1053, and Dhunsi v. J.T. Bakeries, 2010 HRTO 540.

9Based on the material before me, I find that there is considerable overlap between the facts and issues raised by this Application and the ongoing grievance and WSIB proceedings. Accordingly, the Application will be deferred pending the completion of the later of the arbitration and the WSIB proceeding.

10The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which a party may request that the Application proceed.

11I am not seized of this matter.