HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Alison Dalrymple Applicant
-and-
412506 Ontario Ltd. o/a St. Jacques Nursing Home Respondent
-and-
Canadian Union of Public Employees, Local 3303 Intervenor
INTERIM DECISION
Adjudicator: Leslie Reaume Date: June 1, 2012 Citation: 2012 HRTO 1099 Indexed as: Dakrymple v. 412506 Ontario Ltd.
WRITTEN SUBMISSIONS
Alison Dalrymple, Applicant Self-represented
412506 Ontario Ltd., o/a St. Jacques Nursing Home, Respondent Sheri Farahni, Counsel
Canadian Union of Public Employees, Local 3302, Intervenor Sue Lott, Counsel
Introduction
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on June 2, 2010. This Decision arises from a Request to Defer this Application pending the outcome of an ongoing arbitration hearing which commenced on February 29, 2012.
2This Application is scheduled to be heard by the Tribunal on June 11th, 12th and 13th 2012.
3The respondent made a previous Request to Defer this matter which was denied by the Tribunal on September 8, 2011. As the Tribunal noted in that Interim Decision (2011 HRTO 1669), the applicant alleges that on June 30, 2009 she suffered a workplace injury for which she was absent from the workplace from July to August 2009. She alleges that she provided the respondent with medical documentation substantiating her absences to August 10, 2009. She was not able to attend her August 10, 2009 doctor’s appointment because of a family emergency within the doctor’s family, but she obtained another medical note on August 13, 2009 for the period following August 10, 2009. When she arrived at home, she found that the respondent had left a voicemail message for her terminating her employment. Subsequent to her termination, the applicant received benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (“WSIA”) and participated in a labour market re-entry (“LMR”) program under the WSIA. While she was on the LMR program, and many months after she was terminated, the applicant alleges that the respondent suddenly offered her modified work. This complicated her WSIA situation, and compromised her LMR program, to which she has objected.
4The applicant’s workplace was unionized and during her employment she was represented by the Canadian Union of Public Employees, Local 3303 (“the union”). She asserts that the union has not represented her very well. The union was granted intervenor status in this proceeding.
5The first Request to Defer was denied on the basis that a grievance was filed but not referred to arbitration for almost two years and as of the date of the Interim Decision the Tribunal had not been advised of any date set for arbitration nor had it been provided with any documentation showing that the grievance had in fact been referred to arbitration.
6The matter has now been before an arbitrator on several dates in February, March, and May 2012. The applicant does not dispute that the arbitration hearing is ongoing, however, she remains concerned that she will not be represented effectively by her union.
7The 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. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
8The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and 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).
9In this case, the Application and the grievance are based on the same facts and issues between the parties. The applicant has not disputed this. Her views on the possible outcome of the grievance procedure are premature.
10In these circumstances granting the deferral is, in my view, the most fair, just and expeditious way of proceeding with the Application.
11Where 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).
12The respondent has also requested that this matter be dismissed on the basis that it has been dealt with in another forum, namely the Workplace Safety and Insurance Board. Given my decision on the deferral of this Application, I do not consider it necessary to address this issue at this time.
13Counsel for the union has asked the Tribunal to disregard the material recently filed by the applicant which relates to settlement discussions in the arbitration process. I agree that this material should not be before the Tribunal and direct the applicant to ensure that any future communication with the Tribunal does not included references to settlement discussions.
14Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the grievance process. As a result, the scheduled hearing dates are hereby cancelled.
15I am not seized.
Dated at Toronto, this 1st day of June, 2012.
“Signed by”
Leslie Reaume Vice-chair```