Grace Rose v. York Central Hospital and OPSEU, 2012 HRTO 1665

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Grace Rose

Applicant

-and-

York Central Hospital and OPSEU

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: September 4, 2012

Citation: 2012 HRTO 1665

Indexed as: Rose v. York Central Hospital

WRITTEN SUBMISSIONS

OPSEU, Respondent ) Adrienne Liang, Counsel

1This Application was filed on March 14, 2012, under section 34 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.

2The applicant alleges that the respondent employer denied that her disabling condition was as a result of a workplace injury, failed to appropriately accommodate her condition and forced her to retire early because of her disability. With respect to the respondent union, the applicant alleges that it failed to provide her with proper representation. The applicant notes that she has two Workplace Safety and Insurance Board (“WSIB”) appeals underway regarding the circumstances relating to her injury.

3On July 6, 2012, the Tribunal issued a Notice of Intent to Defer. The Tribunal invited the parties to file written submissions with respect to the issue of deferral.

4On August 20, 2012, the respondent union wrote to the Tribunal indicating that, while it does not oppose deferral, it reserves the right to at a later stage argue that the union is not a proper respondent and that there is no prima facie case of discrimination on the part of the union.

5Neither the respondent employer nor the applicant filed submissions in response to the Notice of Intent to Defer.

Deferral

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 has found it to be appropriate to defer applications where there are ongoing WSIB proceedings relating to the same facts and issues as alleged in the Application. See Gibson v. Arc Resources Canada, 2009 HRTO 624, Mahjour v. Joe Singer Shoes, 2010 HRTO 1053, and Dhunsi v. J.T. Bakeries, 2010 HRTO 540.

9In assessing the issue of deferral, the Tribunal in Dhunsi, supra, considered it relevant that workplace safety and insurance proceedings have significant experience in addressing issues of disability. I see no reasons to depart from this line of jurisprudence given the ongoing WSIB process in the present case.

10Based on the materials in the file, it appears that there is an overlap of issues between the WSIB process and the Application. Both proceedings involve matters regarding the cause and nature of the applicant’s condition, the nature and extent of the applicant’s restrictions and the availability of suitable modified work. I find that the matters that comprise the substance of the applicant’s WSIB claims and appeals are directly related to the applicant’s human rights allegations. Further, it appears that the applicant may be seeking overlapping remedies with respect to loss of earnings in both processes.

11Given the overlap in the subject matter of this Application and that of the outstanding WSIB claims, I conclude that deferral is the most fair, efficient, and just way of proceeding with this Application.

12Accordingly, the Tribunal orders that Application is deferred pending the completion of the WSIB proceedings and specifically the conclusion of any appeals.

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.