Luisa Cappellaro v. Findhelp Information Services, 2012 HRTO 1697

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Luisa Cappellaro

Applicant

-and-

Findhelp Information Services

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: September 7, 2012

Citation: 2012 HRTO 1697

Indexed as: Cappellaro v. Findhelp Information Services

WRITTEN SUBMISSIONS

Findhelp Information Services, Respondent

Lauri Reesor, Counsel

Canadian Union of Public Employees, Local 3173, Affected Party

Dave Steele, Counsel

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 in employment on the basis of disability. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of an ongoing grievance.

2On July 16, 2012, the Tribunal sent a Notice of Intent to Defer to the parties indicating that the Tribunal had determined that it might be appropriate to defer consideration of the Application pending the resolution of another legal proceeding dealing with the subject-matter of the Application. The Tribunal directed the parties to deliver and file any written submissions which they wished to make in respect of the deferral issue by August 15, 2012.

3The applicant indicates in her Application that the facts of the Application are part of a union grievance filed by the Canadian Union of Public Employees (“the union”) on behalf of the applicant. The applicant enclosed a copy of a grievance with the Application.

4The applicant did not file submissions with respect to the deferral issue in response to the Tribunal’s Notice of Intent to Defer. The respondent takes the position that the Application should be deferred on the basis that the issues in the grievance are the same as those raised in the Application. The union states that it takes no position with respect to the whether the Application should be deferred, but admits that “it is clear” that issues raised in the Application are similar to those raised in the two grievances it filed on the applicant’s behalf.

5The Tribunal may defer consideration of an Application on such terms as it may determine, on its own initiative or at the request of a party (Rule 14.1). Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal must consider whether deferral is the most fair, just and expeditious way of proceeding with the Application; however, the Tribunal will generally defer applications pending the completion of grievance and arbitration proceedings under a collective agreement that raise the same issues as those in the Application: Melville v. Toronto (City), 2012 HRTO 22. Labour arbitrators have jurisdiction to apply the Code and the Tribunal’s approach to deferral avoids the duplication of proceedings.

6Some, if not all, of the facts and issues raised in this Application are part of grievances. The Application indicates that the allegation of discrimination is in reference to “being fired” because of disability and to “being denied necessary accommodation or modified work”. The grievance filed by the applicant and referred to by the union challenges the alleged failure of the respondent to discuss a return to work plan and challenges the termination of the applicant’s employment. It is to be heard by an arbitrator on October 2, 2012. Since the issues in the Application and the grievance proceeding overlap significantly, proceeding with the Application at the Tribunal could very well lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievance proceeding. The primary purpose of deferring an Application is to avoid such potential inconsistency. I find that, in all of the circumstances, deferring the Application to the completion of the grievance proceeding is appropriate.

7The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be reactivated before the Tribunal, following the conclusion of the grievance proceedings. The Rules of Procedure are available on the Tribunal’s website, www.hrto.ca.

8Any further requests that the parties may wish to be addressed should be initiated by filing a Request for Order During Proceedings if and when the Application is reactivated.

9I am not seized.