McNamara v. Disabled and Aged Regional Transit System, 2012 HRTO 2390

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Jane McNamara

Applicant

-and-

Disabled and Aged Regional Transit System

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: December 21, 2012

Citation: 2012 HRTO 2390

Indexed as: McNamara v. Disabled and Aged Regional Transit System

WRITTEN SUBMISSIONS

Mary Jane McNamara, Applicant

Self-represented

Disabled and Aged Regional Transit System, Respondent Canadian Union of Public Employees, Local 5167, Affected Party

Jane M. Gooding, Counsel Derron Vernon, Representative

Introduction

1The purpose of this Interim Decision is to determine whether this Application should be deferred pending the resolution of the grievances filed on behalf of the applicant.

2The applicant alleges that the respondent discriminated against her on the ground of disability when it failed to accommodate her and terminated her employment. The applicant has filed several grievances in which she has alleged that the respondent failed to accommodate her disability, and that it disciplined and terminated her without just cause. The Applicant’s union, the Canadian Union of Public Service Employees, Local 5167, has referred the grievances to arbitration. They are scheduled to proceed on January 24, 2013.

3On November 8, 2012, the Tribunal sent a Notice of Intent to Defer to the parties indicating that it had determined that it might be appropriate to defer consideration of the Application pending the resolution of another proceeding. The Tribunal invited the parties, and the applicant’s union, as an affected party, to provide written submissions on the issue.

4Only the respondent filed submissions in response to the Notice. The respondent submitted that it would be appropriate to defer consideration of the Application pending the resolution of the grievance.

decision

5The 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 of the Tribunal’s Rules of Procedure). 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 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 a part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. Thus, the Tribunal will generally defer an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

6Since the Application and the grievances raise substantially the same issues, proceeding with the Application could lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievance. As a result, I find it appropriate to defer this Application pending the completion of the arbitration in this matter.

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

8I am not seized of this matter.