HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Katherine Sisco
Applicant
-and-
Dale Brain Injury Services and Neil Hopson
Respondents
INTERIM DECISION
Adjudicator: Sherry Liang
Indexed as: Sisco v. Dale Brain Injury Services
1This is an Application filed on November 18, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The applicant alleges discrimination in employment on the ground of disability.
2The applicant alleges that she has been discriminated against by being deprived of full-time employment since 2002.
3The applicant alleges that she was hired in 2002 in a relief position. Shortly after she began, she went on a lengthy medical leave but returned to work in September 2003. She states that since that time, she has applied for full-time positions several times and been turned down. She states that most recently, in March 2011 she was offered a full-time contract which lasted until the middle of October but after that was returned to her relief position and the full-time work was given to a recently-hired employee.
4The respondents deny any discrimination. They state that the applicant was hired in a position for which there was no guarantee of hours. They state that the applicant is represented by the Service Employees International Union, Local 1 (the Union), and covered by a collective agreement. The collective agreement addresses job postings, and although the applicant unsuccessfully applied for posted positions in 2003 and 2005, she did not file any grievances.
5The respondents also state, and the Application confirms, that the applicant filed a grievance regarding her temporary placement in a full-time position which ended on October 13, 2011. This grievance has been referred to arbitration and the respondents request, among other things, that the Application be deferred pending the completion of the arbitration proceeding. The applicant objects to deferral. Although she agrees that her grievance is going to arbitration, she states that it is unknown when the arbitration will take place and it “will not be dealing with the discrimination I have experienced.”
6A copy of the grievance was submitted with the Application and indicates that it was filed on October 7, 2011. Although it alleges that the employer violated certain sections of the collective agreement and “any other pertinent articles, past practices or laws” it does not explicitly raise human rights issues.
7The respondents also submit that much of the Application is untimely, as it refers to events reaching back to the beginning of the applicant’s employment in 2002.
DEFERRAL
8Deferral 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. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
9Some of the factors that may be 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 type 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.
10In this case, even before she filed this Application, the applicant filed a grievance about the most recent incident giving rise to the Application. It is not apparent whether the Union will be advancing the human rights claims in the Application as part of the arbitration of her grievance but it is clear that the arbitrator will be dealing with questions arising out of the applicant’s temporary placement in a full-time position and the end of that placement. These events form a significant part of the Application.
11Further, the grievance will be proceeding to arbitration before an arbitrator with the authority to make determinations under the collective agreement, but also to consider any human rights issues in relation to the grievance.
12Although the date of the arbitration does not yet appear to have been set, the processing of this Application is itself at an early stage and there is no reason to think that the timing of an arbitration hearing will be significantly different from the timing of a hearing before this Tribunal.
13In these circumstances, it is preferable to avoid concurrent proceedings and the Tribunal therefore finds it appropriate to defer consideration of this Application pending the conclusion of the arbitration proceeding.
14The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the arbitration has been concluded.
15It is unnecessary, given the deferral of the Application, to determine other requests made by the respondents at this time. The Tribunal will consider those requests if the Application is re-activated.
16I am not seized of this matter.
Dated at Toronto, this 29th day of March, 2012.
“signed by”
Sherry Liang
Vice-chair