HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Elaine Pearce
Applicant
-and-
Windsor Regional Hospital, Sharon Morris, Denice Shuker, Sandra Shearme, Lorraine Dupuis and Karen Watson
Respondents
INTERIM DECISION
Adjudicator: Kathleen Martin
Indexed as: Pearce v. Windsor Regional Hospital
WRITTEN SUBMISSIONS
Elaine Pearce, Applicant
Self-represented
Windsor Regional Hospital, Sharon Morris, Denice Shuker, Sandra Shearme, Lorraine Dupuis and Karen Watson, Respondents
Barry Brown, 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"). The applicant alleges that the respondents subjected her to discrimination with respect to employment on the basis of disability when they refused to accommodate her work restrictions. The applicant acknowledges that the facts of the Application are part of a union grievance that is still in progress.
2On May 29, 2012, the Tribunal issued a Notice of Intent to Defer and sought submissions from the parties and the union. The Tribunal stated that the respondents were not required to file a Response at this time.
3The applicant filed submissions opposing deferral. The applicant states that while the grievance was referred to arbitration, the arbitration date set for May 29, 2012 was cancelled based on the respondent Hospital telling the union it would bring her back to work but it had to look at positions that were available and suitable. The applicant describes some of the jobs that she understands have been considered and expresses frustration that she has not yet been returned to work.
4The respondents state that it is appropriate to defer consideration of the Application pending the resolution of two other legal proceedings – the grievance and a proceeding at the Workplace Safety and Insurance Board ("WSIB"). The respondents state that the Application arises from the same circumstances and involves the same legal and factual issues raised in the grievance which has been referred to arbitration. In addition, the respondents state that the WSIB is actively involved in attempting to return the applicant to suitable work at the Hospital and that process arises from the same circumstances and involves the same determination: is there a position within the Hospital in which the applicant could be accommodated.
5The union has not filed any submissions.
DECISION
6The 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.
7Some factors 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.
8The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.
9In this case, I see no reason to depart from the Tribunal's general approach. The grievance arises from the same facts and raises the same legal issues. In addition, the grievance has been referred to arbitration.
10While the applicant expresses some frustration with the fact that the grievance has not yet been resolved through arbitration or other efforts, even based on her submissions, it would appear that the issues raised in the grievance (which are also raised in the Application) are being actively considered.
11In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the applicant's grievance.
12Having regard to the foregoing, it is unnecessary to address at this time the respondents' other request that the Application be deferred pending the proceeding at the WSIB. If necessary, this request may be renewed at the appropriate time.
13Where 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).
14I am not seized of this matter.
Dated at Toronto, this 12th day of July, 2012.
Signed by
Kathleen Martin
Vice-chair