Hillier v. Niagara Health System, 2012 HRTO 2008

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Veronica Hillier

Applicant

-and-

Niagara Health System

Respondent

-and-

Service Employees International Union

Intervenor

INTERIM DECISION

Adjudicator: Leslie Reaume Date: October 23, 2012 Citation: 2012 HRTO 2008 Indexed as: Hillier v. Niagara Health System

WRITTEN SUBMISSIONS

Veronica Hillier, Applicant John P. Ormston, Counsel

Niagara Health System, Respondent Jennifer Fantini, Counsel

Service Employees International Union, Intervenor Helen Nowak, 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 with respect to employment because of disability. This Interim Decision deals with the Respondent’s request to defer this Application pending the completion of a related duty of fair representation proceeding against the applicant’s union which is before the Ontario Labour Relations Board (“OLRB”).

2The applicant opposes the Request. In her Reply, the Applicant indicates that while the subject-matter of her Tribunal Application and her OLRB application arise from the same facts, the parties are not the same. The Tribunal Application is against the applicant’s employer and alleges discrimination in the course of her employment on the basis of disability. The OLRB application alleges a failure on the part of the applicant’s union to properly represent her in relation to her allegations against her employer.

3The 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 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 will generally defer an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

4In this case the applicant indicates that there is a consultation scheduled in the OLRB application for November 19, 2012. While she may obtain a resolution as a result of the consultation, in my view this is not a sufficient reason to defer the Application before the Tribunal. I agree with the applicant that the request to defer is premature. In the event that the OLRB application results in access to the grievance/arbitration process in relation to the issues raised by the applicant in her Tribunal Application, deferral may be appropriate at that time.

5The Request to defer therefore is dismissed.

6The applicant’s union, Service Employees International Union, filed a Request to intervene in the Application. The parties did not file submissions in relation to the union’s Request.

7The Tribunal stated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

8Based on the information provided by the Application, Response and Reply, as well as by the submissions of the union, I am satisfied that the union has an interest in the outcome of the Application.

9Service Employees International Union is therefore granted intervenor status. The scope of the union’s intervention and terms of participation will be decided by the adjudicator overseeing the hearing.

10The parties may have 10 days from the date of this Interim Decision to indicate to the Registrar whether or not they wish to participate in mediation.

11I am not seized.