Mathieu v. Markham Stouffville Hospital, 2012 HRTO 2090

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Mathieu

Applicant

-and-

Markham Stouffville Hospital, Gail Schneider, Diane Purdy, Elaine Forde and Julie Sullivan

Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: November 1, 2012

Citation: 2012 HRTO 2090

Indexed as: Mathieu v. Markham Stouffville Hospital

WRITTEN SUBMISSIONS

Lisa Mathieu, Applicant

Self-represented

Markham Stouffville Hospital, Gail Schneider, Diane Purdy, Elaine Forde and Julie Sullivan, Respondents

Sarah A. Eves, Counsel

Introduction

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 issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The history of this matter is set out in two Case Assessment Directions dated July 26, 2012 and August 8, 2012 (“CAD”). Given that my decision is to defer this Application, it is not necessary for me to deal with the other outstanding issues raised by the respondents and the proposed intervenor.

3On May 14, 2012, the Tribunal sent a Notice of Intent to Defer (“Notice”) to the parties indicating that the Tribunal had determined that it might be appropriate to defer consideration of the Application pending the resolution of a grievance 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 within 30 days of the date of the Notice.

4The applicant did not file submissions. In the two CAD’s described in paragraph 2 the Tribunal permitted the applicant an opportunity to respond to the issue of deferral set out in the Tribunal’s Notice as well as the other issues raised by the respondent and proposed intervenor.

5The applicant filed a response which addresses the respondent’s request for dismissal but not the Tribunal’s Notice of Intent to defer.

6The applicant does not dispute the respondent’s submission that a grievance is in progress which deals with the same facts and issues raised in the Application.

7The 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.

8Since the issues in the Application and the grievance overlap significantly, proceeding with the Application at the Tribunal could very possibly lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievance. The primary purpose of deferring an Application is to avoid such potential inconsistency. I find that, in all of the circumstances, deferring the Application is appropriate.

9The 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 brought back on before the Tribunal, following conclusion of the grievance and arbitration procedure. The Rules of Procedure are available on the Tribunal’s website, www.hrto.ca, under “New Applications”. Where 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.

10I am not seized