HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Anita Khodeir
Applicant
-and-
Professional Institute of the Public Service of Canada (PIPSC) and Communications, Energy and Paperworkers Union of Canada, Local 311
Respondents
INTERIM DECISION
Adjudicator: Naomi Overend Date: April 16, 2012 Citation: 2012 HRTO 751 Indexed as: Khodeir v. PIPSC
1The applicant filed this Application on January 19, 2012, alleging discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant, who is a member of the Communications, Energy and Paperworkers Union of Canada, Local 311 ("Local 311"), filed a grievance relating to her termination from employment on January 26, 2012. She names both her employer, the Professional Institute of the Public Service of Canada ("PIPSC"), and Local 311 as respondents in her Application.
2In its Response, filed on March 6, 2012, PIPSC asks the Tribunal to defer consideration of this Application until such time as the proceeding for hearing the grievance has concluded. The Tribunal specifically drew this request to the attention of the applicant when it served the Response on her and directed her to file submissions by March 26, 2012. The applicant did not file a Reply or any submissions with respect to the issue of deferral and the time for doing so has now passed.
REQUEST TO DEFER
3The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
4The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that 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 part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.
5The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal's normal approach is to defer to the other proceeding.
6In this case, the Application concerns the respondents' respective alleged failures to implement an appropriate return to work plan after a four-year health related absence from work. At the time she filed, the applicant was not aware of the termination of her employment, as she had not received the letter advising her of it until after she had filed her Application with the Tribunal. .
7Despite this obvious difference between the Application and the grievance, it would appear that the applicant will have to address the issues raised in her Application in the grievance process since it would appear that it is her continued absence from work, coupled with her alleged failure to participate in the return to work process, that led to the termination of her employment.
8Given the significant overlap in subject matter of the grievance and this Application, and given the applicant's silence in the face of the PIPSC's request to defer, the Tribunal is of the view that deferral to the grievance process is appropriate. The Application will be deferred pending the completion of the grievance process.
9The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.
10I am not seized of this matter.
Dated at Toronto, this 16th day of April, 2012.
"signed by"______________
Naomi Overend Vice-chair