HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gayle Anne Morris
Applicant
- and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care, Primary Care Branch, Laura Pinkney, and Donna McQuillan
Respondents
INTERIM decision
Adjudicator: Ena Chadha
Indexed as: Morris v. Ontario (Health and Long-Term Care)
1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), on July 29, 2011, alleging discrimination and reprisal with respect to employment on the basis of disability. Along with the Application, the applicant provided copies of her three workplace grievances.
2On September 27, 2011, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject matter of the Application. The Tribunal invited the applicant, the respondents, and the applicant's union, the Association of Management, Administrative and Professional Crown Employees of Ontario ("AMAPCEO"), as an affected party, to file submissions as to why consideration of the Application should or should not be deferred.
3On October 19, 2011, the applicant filed written submissions opposing deferral. The applicant submits that there has been a delay in receiving information from the respondent employer and that information is necessary to address her medical needs, her financial and personal life has been seriously negatively affected because of her work situation, and that further delay will continue to adversely affect her life and exacerbate her poor health.
4The respondents filed submissions on November 21, 2011 supporting deferral. The respondents submit that the applicant's three outstanding grievances have been referred for scheduling at the Grievance Settlement Board. The respondents submit that the Tribunal should defer the Application because the grievances are based on the same facts and issues as set out in the Application.
5The affected party, the AMAPCEO, filed submissions on November 21, 2011 also supporting deferral. The AMAPCEO submits that there is substantial overlap in the facts and issues raised in the applicant's workplace grievances and the current Application. The AMAPCEO indicates that the employer has agreed to consolidate the three grievances. Further, the parties are in the process of scheduling a mediation date in spring 2012 and, if unsuccessful at mediation, arbitration hearing dates will be set.
DECISION
6The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). 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.
7The Tribunal will generally defer an application where there is an on-going grievance under a collective agreement based on the same facts and issues. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application. Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.
8Based on the materials submitted with the Application, it appears that the three grievances were commenced in 2010 and, therefore, prior to the filing of this Application. It also appears that the grievances raise the same facts and issues as alleged in this Application, specifically both make allegations with respect to failure to accommodate, exacerbation of symptoms, inadequate workstation, and alternate work premises. I find that there is significant overlap between the facts and issues in the current Application and three outstanding grievances. Given the possibility of concurrent proceedings and inconsistent findings of fact and law, I determine that the most fair, just and expeditious approach is to defer consideration of this Application in these circumstances.
9I appreciate that the applicant's personal circumstances may be difficult and that she is dissatisfied with how her work situation has evolved. However, the parties' submissions indicate that the applicant's grievances will be proceeding to mediation/hearing in the upcoming months. There is no indication that the human rights issues will not be resolved or dealt with through that process. 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.
10The Tribunal orders the deferral of the Application pending the conclusion of the applicant's grievances. The 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 processes.
11I am not seized of this matter.
Dated at Toronto, this 19th day of December, 2011
"signed by"__________
Ena Chadha
Vice-chair