Miller v. North Bay General Hospital, 2011 HRTO 632

Human Rights Tribunal of Ontario

Between:

Christopher Miller Applicant

• and -

North Bay General Hospital and Dale McKinnon Respondents

Interim Decision

Adjudicator: Ena Chadha Date: March 31, 2011 Citation: 2011 HRTO 632 Indexed as: Miller v. North Bay General Hospital

1The applicant filed an Application on December 7, 2010, 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 and record of offences. The Application indicates that the applicant has a grievance with respect to the termination of his employment.

2The Application identified the applicant’s employer, the Hospital, and a Program within the Hospital where the applicant worked as named respondents.

3The Application was served on the respondents named in the Application and the applicant’s union, as an affected party.

4On February 9, 2011, the Tribunal issued a Notice of Intent to Defer to the parties and the applicant’s union, indicating that the Tribunal was considering deferring the Application 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 parties and the union to file submissions no later than March 11, 211 as to why consideration of the Application should or should not be deferred.

5On February 25, 2011, the respondents filed submissions indicating they support the deferral because the grievance and the Application overlap and because the grievance is being referred to arbitration. On March 10, 2011, the applicant filed submissions indicating that he feels the Application should proceed because he has been advised that the arbitration could take up to year and he does not know exactly when his arbitration will be heard.

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.

7Based on the materials filed with the Tribunal, it appears that there is outstanding grievance regarding similar allegations which are made in the Application. Further, the applicant’s submissions confirmed that he was advised by the union that the issues raised in the Application would be addressed during the arbitration hearing. Based on the Application narrative and the grievance included with the Application, I conclude that there is direct overlap between the grievance and the factual and legal subject matter of the Application.

8In these circumstances deferral is appropriate. I understand that the applicant is concerned about the fact that the arbitration process may take up to a 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.

9Where 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).

10On March 3, 2011, the respondents filed a Request for Order during Proceedings seeking that the Tribunal remove the respondent Program as a party from the Application. The respondents advised that the Program is not a separate or legal entity and, in fact, is operated by the Hospital. The applicant did not respond to the respondents’ request to remove the Program. In these circumstances, the Tribunal removes the respondent Program as a party from the Application and amends the style of cause accordingly.

11I am not seized of this matter.