Ricard v. Almonte General Hospital, 2011 HRTO 2226

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randy Ricard

Applicant

-and-

Almonte General Hospital, Lanark County Ambulance Service and James McIsaac

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: December 9, 2011

Citation: 2011 HRTO 2226

Indexed as: Ricard v. Almonte General Hospital

1This is an Application filed on July 5, 2011 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 issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The facts giving rise to the Application are part of a union grievance proceeding that is still in progress. On November 9, 2011, the Tribunal asked the parties for submissions on whether the Application should be deferred because of the ongoing grievance proceeding.

3The respondent submits that the Application should be deferred. It advises that the grievance procedure is under way. A Board of Arbitration has been appointed and the Board issued an interim decision in April 2011. The Board will reconvene on set dates in June, July and September, 2012.

4The applicant submits that the Application should not be deferred.

5Rule 14.1 of the Tribunal’s Rules of Procedure provides that the Tribunal may defer consideration of an application, on such terms as it may determine. The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. Deferral 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.

6The Tribunal 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 (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

7The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

8In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The applicant is understandably frustrated by the delay that he has experienced in having the grievance dealt with in a timely way. However, a Board of Arbitration is now seized with the matter and the grievance process is well underway. In these circumstances, I am satisfied that it is appropriate for the Tribunal to defer further consideration of the Application until the grievance procedure is resolved.

9The Application will therefore be deferred pending the completion of the grievance process.

10Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure outline the steps by which the Application may be brought back on after the conclusion of the grievance process. The Union’s Request to Intervene will be dealt with by the Tribunal if the Application is re-activated.