Airns v. Dilico Anishinabek Family Care, 2012 HRTO 1266

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cecilia Anne Airns

Applicant

-and-

Dilico Anishinabek Family Care

Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: June 28, 2012

Citation: 2012 HRTO 1266

Indexed as: Airns v. Dilico Anishinabek Family Care

WRITTEN SUBMISSIONS

Cecilia Anne Airns, Applicant

Self-represented

Dilico Anishinabek Family Care, Respondent

M. Fricot, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of age, ancestry, disability, family status, race and reprisal.

2The applicant alleges discrimination on a number of grounds which are connected, in the applicant's view, to a workplace injury and subsequent return to work plan.

3The applicant initially filed her allegations of discrimination with the Canadian Human Rights Commission. The Commission found that the respondent falls under provincial jurisdiction. Neither the applicant, nor the respondent, are seeking judicial review of that decision.

4The Tribunal then issued a Notice of Intent To Defer dated March 21, 2012, pending the resolution of a proceeding before the Canadian Industrial Relations Board (the "CIRB") involving the same respondent. The applicant and the respondent filed submissions in response to the Notice.

5The applicant says that she does not wish to have her Application deferred. She indicates that it took eighteen months for the federal Commission to provide her with a decision on jurisdiction and she is under a great deal of stress waiting for a resolution of her allegations.

6The respondent indicates that the federal Commission's decision to decline jurisdiction of the applicant's allegations is in conflict with a 2005 decision of the CIRB which concluded that the respondent's labour relations fall under federal jurisdiction. The respondent also indicates that the jurisdictional issue has recently been raised in proceedings commenced before the CIRB in December 2011 and it is expected that the CIRB will be "addressing that issue shortly."

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.

8The Tribunal will generally defer an application where the parties are already engaged in legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to the facts or issues raised in the application. See Aganeh Estate v. Mental Health Care Penetanguishene, 2011 HRTO 2280. However, deferral is not automatically indicated simply because there are other legal proceedings involving some of the parties. 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.

9Factors 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.

10I have reviewed the submissions provided by the parties. The matter before the CIRB does not involve the applicant or the subject-matter of her complaint. The respondent has provided no information on the subject-matter of the application before the CIRB, the nature of the jurisdictional question, and its implications for the Application currently before this Tribunal. The respondent's submission that the CIRB is expected to be "addressing that issue shortly" does not provide sufficient information for me to determine whether a hearing has commenced or whether the parties are waiting for a decision.

11In addition, the Federal Commission's reasons for the decision to decline jurisdiction indicate that it is "plain and obvious" that the respondent falls within provincial jurisdiction on the basis of a decision of the Supreme Court of Canada which post-dates the 2005 decision of the CIRB relied upon by the respondent (NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union, 2010 SCC 45, [2010] 2 SCR 696).

12In my view, there are insufficient grounds to justify deferral at this stage. Accordingly, the Notice of Intent to Defer is set aside.

13The respondent is to file a response to the Application within 35 days of the date of this Interim Decision. The applicant is to file a reply, if necessary, within 14 days of the Response. Within 7 days of the date of this Interim Decision, the parties are directed to write to the Tribunal, confirming whether or not they are amenable to participating in mediation.