Sawicki v. Central North Correctional Centre, 2012 HRTO 1902

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sheila Sawicki

Applicant

-and-

Central North Correctional Centre and Slavadore Lentini

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: October 5, 2012

Citation: 2012 HRTO 1902

Indexed as: Sawicki v. Central North Correctional Centre

1This Application was filed on July 3, 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 ground of disability. In the Application, the Applicant noted that she has an outstanding grievance regarding the facts that are alleged in the Application.

2On August 16, 2012, the Tribunal issued a Notice of Intent to Defer (“NOID”) on the basis that it may be appropriate for the Tribunal to defer the Application pending the conclusion of the applicant’s grievance. The NOID invited the parties and the applicant’s union, as the affected party, to file submissions in response to the NOID.

3Neither party nor the applicant’s union filed submissions with respect to whether or not the Application should be deferred pending the completion of the grievance process.

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.

5Some 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.

6Having reviewed the Application and accompanying documentary material, I conclude that there is significant overlap in the subject matter of the Application and the applicant’s outstanding grievance. The applicant’s narrative clearly indicates that issues with respect accommodation are the subject of the grievance. The applicant provided a copy of the August 8, 2011 grievance and a letter, dated October 4, 2011, from her union advising that the grievance was formally referred to arbitration.

7The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is an on-going 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. I see no reason to depart from this approach.

8As such, the most fair, just and expeditious approach is to defer consideration of this Application pending the completion of the grievance/arbitration process.

ORDER

9The Application is deferred until the completion of the grievance/arbitration process.

10Where 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).

11I am not seized