HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Audrey Vassell
Applicant
-and-
Revera Long Term Care Inc. o/a Versa Care Main Street and Elizabeth Bradshaw
Respondents
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Vassell v. Revera Long Term Care Inc.
WRITTEN SUBMISSIONS
Audrey Vassell, Applicant
Self-represented
Revera Long Term Care Inc. and Elizabeth Bradshaw, Respondents
Erin Porter, Counsel
Christian Labour Association of Canada, Intervenor
Ken Dam, Representative
Introduction
1This is an Application filed on June 14, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.
2The original Application alleged discrimination and harassment in employment because of disability and also alleged reprisal. In June 2011, the applicant filed a Request for Order During Proceedings asking that the Application be amended to include allegations of further discrimination, harassment and reprisal in regard to events in October 2010, which was after the Application was filed.
3By Case Assessment Direction dated July 19, 2011, the Tribunal granted the respondents’ request that a summary hearing be held to determine if the Application should be dismissed in whole or in part on the grounds that there is no reasonable prospect that the Application, or a part of the Application will succeed.
4The summary hearing was held by telephone conference call on December 19, 2011. In Interim Decision 2012 HRTO 30, the Application was dismissed in part. The Interim Decision granted a request to intervene by the Christian Labour Association of Canada (“the union”). The Interim Decision also granted the applicant’s request to amend the Application to include events in October 2010.
5The Interim Decision dismissed the allegations regarding the events that occurred before the Application was filed, for the reasons set out in the Interim Decision. The Interim Decision also dismissed the allegations of reprisal. The allegations in regard to events in October 2010 were not dismissed. The Interim Decision concluded as follows:
The Application as amended is dismissed because there is no reasonable prospect that the Application will succeed except for the allegations concerning the events in October 2010.
The Tribunal will continue to process the Application in regard to the alleged events in October 2010.
6A hearing has been scheduled for October 5, 2012.
7On May 3, 2012, the applicant submitted a Request for Reconsideration. The Request sets out further allegations about events in 2011 and 2012 which the applicant alleges demonstrate reprisal and continuing discrimination and harassment.
8In a Case Assessment Direction dated July 5, 2012, I noted that it appeared that the applicant was essentially seeking to amend the Application to include allegations of ongoing harassment. The respondents were invited to make submissions on whether the applicant should be permitted to amend the Application to include allegations of continuing harassment.
9On July 11, 2012, the Tribunal received another Request for Order During Proceedings from the applicant. She indicated that her employment was terminated on June 8, 2012 and that she had filed a grievance in respect of this. In a Case Assessment Direction dated July 12, 2012, I noted that in these circumstances it may be appropriate for the Tribunal to defer further consideration of the Application until the grievance procedure has been completed. Submissions on this were invited from the parties and the union.
10The applicant opposes deferral. She submits that she experienced continuing harassment, discrimination and reprisal and that this culminated in the termination of her employment. She wants to amend the Application to reflect these allegations and wants the Tribunal to hear the amended Application.
11The union also opposes deferral. The union states that the grievance that was filed on June 12, 2012 concerns only the termination of the applicant’s employment and will not address the allegations of ongoing harassment and discrimination.
12The respondents support deferral. They advise that there are in fact three ongoing grievances. Two relate to incidents in February and March 2012. It appears that the applicant alleges that these incidents were examples of the alleged ongoing harassment discrimination and reprisal. The third grievance relates to the termination of the applicant’s employment. The respondents note that the third grievance alleges that the respondents’ violated the applicant’s Code-protected rights.
Conclusions
13The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
14The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights 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).
15The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.
16At this point, the Application has been amended to include allegations about events in October 2010. The applicant wishes to further amend the Application to deal with subsequent events including the termination of her employment.
17It is not clear that the grievance procedures will deal with the events in October 2010. It appears that they will deal with the subsequent events including the termination of the applicant’s employment. It appears that they will likely also deal with the applicant’s allegations of ongoing harassment, discrimination and reprisal.
18It therefore appears that there is a substantial overlap between the facts and human rights issues that the applicant wants to raise before this Application and those referred to in the grievances. In these circumstances, I am satisfied that it is appropriate for the Tribunal to defer further consideration of this Application until the grievance proceedings have been resolved.
19If the applicant believes, on conclusion of that process, that her human rights issues have not been adequately addressed, she may ask to have this Application brought back on before the Tribunal.
20The Application will therefore be deferred pending the completion of the grievance process.
21The procedure by which the Application may be brought back on after the conclusion of the grievance process is set out in Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure.
22The hearing scheduled for October 5, 2012 is cancelled.
Order
23The Tribunal will defer further consideration of the Application pending the conclusion of the grievance procedure.
24The hearing scheduled for October 5, 2012 is cancelled.
Dated at Toronto, this 31st day of July, 2012.
Signed by
Brian Cook
Vice-chair