Human Rights Tribunal of Ontario
BETWEEN:
Rebekah Lundy Applicant
- and -
St. Joseph’s Health Care Respondent
INTERIM DECISION
Adjudicator: Ena Chadha Date: March 30, 2011 Citation: 2011 HRTO 623 Indexed as: Lundy v. St. Joseph’s Health Care
1The applicant filed an Application on January 13, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination and reprisal with respect to employment on the basis of disability. The Application indicates that the applicant has three on-going grievances.
2The Application was served on the respondent and the applicant’s union as a named affected party.
3On February 18, 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 pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal invited the applicant and the applicant’s union to file submissions no later than March 21, 2011 as to why consideration of the Application should or should not be deferred.
4On March 21, 2011, the respondent filed submissions asking the Tribunal to defer the Application pending the resolution of the applicant’s grievances. The respondent confirms that the applicant has three grievances regarding matters related to the allegations contained in this Application.
5On March 21, 2011, the applicant filed submissions opposing deferral and asserts that the respondent seeks deferral as a means to delay all matters because the arbitration hearing into the grievances is scheduled for next year.
REQUEST TO DEFER
6The Tribunal will generally defer an application where there is an on-going grievance under a collective agreement based on the same facts and human rights issues. See Blackman v. Ontario (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: Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. 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.
7In its Response, the respondent submits that the applicant’s three grievances arise out of the same facts that are alleged in the current Application. The respondent indicates that an arbitration hearing is scheduled to commence in March 2012 before an experienced arbitrator, namely Louisa Davie, and that a resolution of the outstanding grievances may substantially narrow the scope of the Application.
8Based on the materials filed with the Tribunal, it appears that there are three outstanding grievances regarding the similar concerns which are raised in the Application, including allegations of poisoned work environment, unfair treatment with respect to employment opportunities, concerns regarding medical documentation and accommodation. There appears to be significant overlap in the subject matter and legal issues of the Application and the facts and legal issues underlying the outstanding grievances.
9In these circumstances deferral is appropriate. I understand that the applicant is concerned about the fact that the arbitration hearing is scheduled to proceed next year; however, the length of time for an arbitration process is not a sufficient reason to proceed with the Application given the possibility of concurrent proceedings and inconsistent findings of fact and law. See Law v. Organizational Solution, 2010 HRTO 1158. In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of this Application.
10The Tribunal orders the deferral of the Application pending the conclusion of the outstanding grievances. Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).
11I am not seized of this matter.
Dated at Toronto, this 30^th^ day of March 2011
”Signed by”
Ena Chadha Vice-chair