HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Anahid Kerkezian
Applicant
-and-
Donway Place Retirement Home, Anne Gro-Arboine and Vernet Malcom
Respondents
INTERIM DECISION
Adjudicator: Alan G. Smith Date: March 8, 2011 Citation: 2011 HRTO 468 Indexed as: Kerkezian v. Donway Place Retirement Home
WRITTEN SUBMISSIONS
Anahid Kerkezian, Applicant: Self-represented Donway Retirement Home, Anne Gro-Arboine and Vernet Malcom, Respondents: Erin Porter, Representative Service Employees International Union: Gail E. Misra, Counsel
INTRODUCTION
1This is an Application filed November 17, 2010, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). This Interim Decision addresses a Notice of Intent to Defer issued by the Tribunal by which the Application would be deferred pending the outcome of the ongoing workplace grievance-arbitration process.
2The representative of the corporate respondent filed submissions on March 3, 2011 in favour of deferral. The corporate respondent advised that two grievances have been filed by the applicant: April 4, 2010 and December 13, 2010.
3The applicant’s bargaining agent, the Service Employees International Union (SEIU) identified as an affected party in this Application, filed submissions on February 28, 2011. The SEIU and the corporate respondent have agreed to submit the applicant’s grievances to a mediator/arbitrator as soon as a convenient date can be arranged. The SEIU also advised there is an agreement to a particular mediator/arbitrator.
4The applicant opposes deferral because she is concerned the remedies available through the grievance-arbitration process are inferior to remedies available from the Tribunal. The applicant is also concerned that the grievance-arbitration process is too lengthy.
5Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law.
6While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type 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. Christianson v. College of Physicians and Surgeons, 2009 HRTO 438, at para. 10; Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.
DECISION
7The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. See Blackman v. Ontario (Minister of Community Safety and Correctional Services), 2009 HRTO 970 at para. 5. 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 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. In my view this answers the applicant’s primary reason for objecting to deferral.
8A review of the grievances filed by the applicant reveals they are virtually identical to the subject matter of the Application.
9While the applicant may be frustrated with the length of time the grievance/arbitration process has taken, this is not a sufficient reason to proceed with the Application in all the circumstances. See Law v. Organizational Solution, 2010 HRTO 1158.
ORDER
10In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the grievance arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.
11I am not seized of this matter.
Dated at Toronto, this 8^th^ day of March, 2011.
“Signed By”
Alan G. Smith
Member```