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HUMAN RIGHTS TRIBUNAL OF ONTARIO
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B E T W E E N:
Christina McKinney
Applicant
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Metro Ontario Inc.
Respondent
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Retail Wholesale Canada/CAW Division, Local 414
Intervenor
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INTERIM DECISION
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Adjudicator: Michelle Flaherty
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Date: December 6, 2011
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Citation: 2011 HRTO 2198
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Indexed as: McKinney v. Metro Ontario
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[1] The applicant filed an Application on September 14, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which she alleges discrimination with respect to employment on the basis of disability. The applicant alleges that the respondent has discriminated and harassed her because of her disability-related needs and that it has failed to accommodate her disability.
[2] The Application was served on the respondent and the applicant’s union, Retail Wholesale Canada/CAW Division, Local 414 (“Union”), as a named affected party.
[3] In an Interim Decision dated November 23, 2010, the Tribunal deferred the Application pending the determination of a grievance proceeding. The Tribunal held that the Application and grievance overlap in terms of the facts and the remedy sought.
[4] On October 18, 2011, the applicant filed a Request for an Order During Proceedings seeking to reactivate the Application. The applicant states that the respondent and the Union have failed to advance the grievance. In particular, she states that Union has made an inappropriate request for medical documentation.
[5] The respondent has filed a Response in which it opposes the Request. It states that the applicant has already unsuccessfully judicially reviewed the Tribunal’s Interim Decision deferring the Application. It states that the applicant’s Request to reactivate the Application is an attempt to circumvent the grievance proceeding and to relitigate the deferral issue. The respondent states that any delay in the arbitration proceeding can be attributable to the applicant and her failure to respond to appropriate requests for medical documentation.
[6] The Union has not filed submissions in response to the Request.
## DECISION
[7] The Request to reactivate the Application is denied. I am not satisfied there is any reason to revisit the Tribunal’s decision to defer the Application or that the circumstances warrant reactivation.
[8] The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.
[9] The Tribunal has already concluded that the overlap between the grievance and the Application is such that deferral is appropriate. At issue is whether the delay in advancing the grievance arbitration warrants the Tribunal deviating from its general practice to defer consideration of the Application in light of the ongoing grievance proceeding.
[10] Both parties acknowledge that the grievance has not yet proceeded to arbitration and that the medical records have been at the source of the delay. There is, however, a factual dispute between the parties regarding the cause of the delay. The applicant states the respondent and the Union have caused the delay by their request for inappropriate medical information. The respondent states that the applicant has delayed the grievance proceeding by refusing to provide relevant medical documents.
[11] The Request to reactivate the Application puts the appropriateness of the request for medical documents within the grievance proceeding squarely at issue. In essence, it asks the Tribunal to determine the scope of appropriate medical disclosure in the grievance proceeding. The decision about the appropriate scope of medical disclosure within the grievance proceeding lies with the grievance arbitrator, not the Tribunal. It is not appropriate for the Tribunal to make such a determination.
[11] For the above reasons, the Request to reactivate is denied. The Tribunal again directs the parties’ attention to Rules 14.3 and 14.4, which outline the process by which a party may seek to bring the Application back on after the grievance process has been concluded.
[12] I am not seized of this matter.
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Dated at Toronto, this 6<sup>th</sup> day of December, 2011.
“Signed by”
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Michelle Flaherty
Vice-chair
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minicounsel