Wright v. Caressant Care Nursing and Retirement Homes Ltd., 2012 HRTO 1453

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barbara Wright

Applicant

-and-

Caressant Care Nursing and Retirement Homes Ltd.

Respondent

-and-

United Food and Commercial Workers Canada, Local 175

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Decision Date: July 25, 2012

Citation: 2012 HRTO 1453

Indexed as: Wright v. Caressant Care Nursing and Retirement Homes Ltd.

WRITTEN SUBMISSIONS

Barbara Wright, Applicant

Patrick James, Counsel

Caressant Care Nursing and Retirement Homes Ltd., Respondent

Carolyn Johnston, Counsel

United Food and Commercial Workers Canada, Local 175, Intervenor

Evan Schiller, Counsel

1This Application was filed on March 2, 2012, 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 on the basis of disability. The applicant’s narrative noted that she had several unresolved workplace grievances as a result of the respondent’s allegedly unfair and discriminatory discipline.

2The respondent filed a Response on May 4, 2012, and requested that the Tribunal defer the Application pending the conclusion of the applicant’s grievances.

3By way of Interim Decision 2012 HRTO 1107, the Tribunal granted the request to intervene filed by the applicant’s union, United Food and Commercial Workers Canada, Local 175 (“union”). The Tribunal directed the parties to provide further clarification of the status of the workplace grievances.

Deferral

4The 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.

5The applicant alleges that she was subjected to discriminatory discipline and harassment following her return to work from a medical leave of absence in February 2011. The applicant provided copies of four grievances filed from August to December 2011 with respect to unjust discipline. In response to the Tribunal’s request for clarification of the status of the grievances, the applicant submits that she has no information as to whether or not the grievances will be forwarded for arbitration and has received no explanation as to the basis for the lengthy delay in resolving her grievances.

6The union indicates that the applicant’s four grievances have been processed through the stages of the workplace grievance procedures and are now in the final stage of being prepared to be referred for arbitration, which will occur in the near future.

7The respondent denies the allegations of discrimination and harassment and asserts that the applicant was disciplined for work performance issues. The respondent maintains that the Application should be deferred pending the conclusion of the grievances because the applicant is attempting to carry on multiple proceedings regarding the same issues against the respondent. The respondent asserts that since it appears that the union intends to proceed to arbitration the Tribunal should defer the Application until the conclusion of the arbitration process.

8The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is ongoing grievance under a collective agreement based on the same facts and issues as raised in the Application. In so doing, the Tribunal has relied on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, wherein the Supreme Court of Canada confirmed 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.

9Some 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.

10This Application is clearly challenging what the applicant perceives to be as unfair and unwarranted discipline since her return from medical leave. The applicant filed four grievances regarding the impugned discipline prior to commencing this Application. The internal grievance process appears to be completed and, according to the applicant's union, the grievances are being considered for referral to arbitration.

11Based on the parties’ submissions and having carefully reviewed the Application and Response, I conclude that there is significant overlap in the subject matter of the Application and the outstanding grievances. As such, there is a real concern with respect to parallel proceedings. The allegations in the Application pertain to the very same incidents of discipline as alleged in the outstanding grievances. The grievances were filed prior to the Application. There is risk of inconsistent findings of fact and duplication of resources if the current Application was to proceed concurrently with the arbitration of the grievances. As such, the most fair, just and expeditious approach is to defer consideration of this Application pending the conclusion of the applicant’s grievances and the grievance proceedings.

12The Application is deferred until the conclusion of the grievance process. 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).

13I am not seized of this matter.