Dianna Boltinsky v. Jewish Vocational Service Toronto, 2012 HRTO 1740

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dianna Boltinsky

Applicant

-and-

Jewish Vocational Service Toronto

Respondent

interim DECISION

Adjudicator: Kathleen Martin

Date: September 14, 2012

Citation: 2012 HRTO 1740

Indexed as: Boltinsky v. Jewish Vocational Service Toronto

1This is an Application filed on June 13, 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 on the basis of disability. This Interim Decision determines whether the Application should be deferred.

BACKGROUND

2The Application arises out of the applicant’s employment with the respondent. The applicant was injured in 2006 and alleges that she was diagnosed with various conditions which required workplace accommodations. The applicant states that on March 19, 2012, she was forced to take an indefinite leave of absence because of her ongoing need to attend medical appointments and to relieve the respondent of its legal obligation to accommodate her. The applicant is a member of CUPE Local 2137.

3The Application covers the time period 2006 to the date of filing although the bulk of the allegations appear to relate to the period 2011 forward. Among other things, the applicant alleges that the respondent failed in its duty to accommodate her, engaged in discrimination-based harassment, forced her to obtain unnecessary and costly medical reports, imposed an unpaid leave of absence on her despite her ability to work and made allegations of fraud against her with respect to the status of her health.

4The Application indicates that it is part of a grievance proceeding that is still in progress. A single grievance (described as Case No 2012-4) dated March 20, 2012 is attached to the Application. This grievance protests the applicant being removed of her duties without pay and being improperly laid off. The applicant indicates that she is not seeking deferral.

5On July 5, 2012, the Tribunal issued a Notice of Intent to Defer indicating that it has determined that it may be appropriate to defer the consideration of the Application pending the resolution of another legal proceeding. The Tribunal offered the parties and the applicant’s trade union an opportunity to make submissions on the issue. The Tribunal also indicated that the respondent was not required to file a response to the Application at this time.

6On August 7, 2012, the respondent filed submissions. The respondent identified seven grievances filed on behalf of the applicant four of which may overlap with the facts as set out in the Application (one of which is referenced in paragraph 4 above) and three of which post-date the Application. The respondent states that the following three grievances have been referred to arbitration although there is some ambiguity as to whether or not these grievances are being heard together:

Grievance No. 2012-1 dated February 16, 2012 claiming that the respondent has violated terms set out in correspondence by communicating directly with the applicant’s medical practitioner requesting particulars of her treatment contrary to the collective agreement and Code;

Grievance No. 2012-02 dated February 16, 2012 claiming that the respondent has violated the collective agreement by not maintaining a harassment and discrimination free workplace;

Grievance No. 2012-4 dated March 20, 2012 referred to in paragraph 4 above.

7The fourth grievance dated December 7, 2011 makes a similar allegation to that contained in Grievance No 2012-1 but presumably in respect of an earlier period.

8The respondent states that it is agreeable to consolidating all of the applicant’s grievances and that the Request to Defer may be premature pending an upcoming meeting between itself, the union and the applicant (presumably referring to the possibility of consolidation). Notwithstanding this, the respondent indicates that it invites the Tribunal to defer pending the completion of the grievance process.

9The union filed submissions indicating that it has several outstanding grievances filed on behalf of the applicant and that these grievances raise a number of the issues that are “similar” to those raised in the Application although no copies were provided. The union states that it takes no position on deferral.

10By letter dated August 20, 2012, the Tribunal asked the parties and union to file copies of the grievances referenced, an update on their status and any further submissions they wish the Tribunal to consider in respect of the Notice of Intent to Defer.

11The respondent filed further submissions providing copies of all seven grievances. The respondent made similar submissions to that made earlier. Based on these submissions, it would appear that the parties have yet to meet to discuss the consolidation of the grievances.

12The union also filed copies of the grievances, but took no further position on deferral.

13The applicant has not filed any submissions in response to the Notice of Intent to Defer.

DECISION

14The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. In explaining its 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).

15In this case, the Tribunal issued the original Notice of Intent to Defer based on the statement in the Application that there was a grievance proceeding and the inclusion of a single grievance. While the respondent has now referred to six additional grievances, three of which have referred to arbitration and appear to relate in time to the allegations in the Application, based on the material filed, it remains somewhat unclear whether these grievances overlap directly with the issues in the Application and whether they are being consolidated or not in the arbitration process.

14In the circumstances, I find it appropriate to defer the Application to the grievance arbitration proceeding for Grievance 2012-4 dated March 20, 2012 alone as set out in paragraph 4 above. The consideration of whether the Application should be deferred pending the completion of any other grievance proceeding may be raised if and when the Application is reactivated.

15The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the grievance arbitration proceeding has been concluded.

16I am not seized of this matter.