HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Denis Daoust
Applicant
-and-
Health Sciences North (HSN) incorporated as Hôpital régional de Sudbury Regional Hospital (HRSRH)
Respondent
-and-
Canadian Union of Public Employees, Local 1623
Intervenor
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Daoust v. Health Sciences North
1The applicant filed this Application on August 12, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability.
2The Application named the Sudbury Regional Hospital as the respondent employer. The applicant alleges that his employer refused to provide coverage for sick benefits during his health-related absence, his employer has refused to return him to a graduated work schedule, and refused to provide accommodation. The applicant’s narrative indicates that he filed a grievance about the refusal to pay sick benefits. The Application identifies the applicant’s union, Canadian Union of Public Employees, Local 1623, as an affected party (“union”).
3The Application was served on the respondent and the applicant’s union as a named affected party.
4On December 9, 2011, the respondent filed a Response, wherein it indicates that its proper legal name is Health Sciences North (HSN) incorporated as Hôpital régional de Sudbury Regional Hospital (HRSRH). In its Response, as well as a Request for an Order During Proceedings, dated December 12, 2011, the respondent asks the Tribunal to defer the Application pending the completion of two grievances filed by the applicant.
5On December 15, 2011, the applicant’s union filed a Request to Intervene. The union noted that, while several of the issues raised in the Application relate to the outstanding grievances, the union takes no position with respect to deferral.
6The applicant filed a Reply on January 2, 2012 stating that he is opposed to deferral because no date has been set for arbitration.
REQUEST TO INTERVENE
7The applicant’s union seeks to intervene in accordance with Rules 11 of the Tribunal’s Rules of Procedure. The union requests full intervenor status. The union represents the applicant in the two grievances arising out of the facts that give rise to this Application. The union indicates that it continues to represent the applicant in the workplace with respect to these grievances and that grievance processes are on-going.
8The union has a significant interest in the outcome of the Application as the applicant’s exclusive bargaining agent and the entity with carriage of the two grievances. As the Tribunal indicated 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.
9In accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by the union, the union’s Request to Intervene is granted. The scope of the union’s participation in the hearing will be determined by the adjudicator hearing the Application.
DEFERRAL
10The 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.
11Some 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.
12In its Response and Request, the respondent submits that the grievances directly relate to the subject-matter of the Application. The respondent included copies of the two grievances. The respondent’s, as well as the union’s, submissions indicate that the parties and the unions are engaged in grievance processes and step 2 was completed in late November 2011. The respondent submits that if these discussions do not resolve the concerns, the union may refer the matters to arbitration.
13In the present case, the factual background of the Application clearly overlaps with the grievances. Based on a review of the grievances, it appears that the first grievance challenges the respondent’s refusal to provide sick time pay and the second grievance challenges the respondent’s refusal to provide accommodation. Clearly, both grievances and the Application arise out of the same events surrounding the applicant’s sick leave, and both have, as part of their focus, the applicant’s allegations of failure to accommodate. It also appears that there is similarity in the remedies sought in the two proceedings. In these circumstances, I find that it is appropriate to defer the Application.
ORDER
14The Tribunal orders that the style of cause is amended to reflect the respondent’s proper legal name.
15The Tribunal orders that the Application is deferred pending the conclusion of the grievances. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which set out the procedure if a party wishes to proceed with an Application pending the conclusion of another proceeding.
16The Tribunal orders that the union is granted intervenor status. Given the Tribunal’s decision to defer this Application, the extent and the nature of the union’s participation in the proceeding can be determined when and if the matter is brought back before the Tribunal.
17I am not seized of this matter.
Dated at Toronto, this 8th day of February, 2012.
”signed by”______________
Ena Chadha
Vice-chair