Daoust v. Sudbury Regional Hospital, 2012 HRTO 8

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Suzanne Daoust

Applicant

-and-

Sudbury Regional Hospital operating as Health Sciences North and Laura Thompson

Respondents

-and-

Canadian Union of Public Employees, Local 11623

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: January 4, 2012

Citation: 2012 HRTO 8

Indexed as: Daoust v. Sudbury Regional Hospital

1The applicant filed this Application on August 8, 2011 under Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment on the basis of disability. The applicant alleges that the respondent employer refuses to provide her with appropriate workplace accommodation. The Application included a copy of a workplace grievance dated February 1, 2011, alleging the employer failed to place the applicant in an accommodated position.

2On October 31, 2011, the Tribunal issued a Notice of Intent to Defer (“Notice”) to the parties and the affected party, the applicant’s union. The Notice indicated that the Tribunal was considering whether or not the Application should be deferred pending the resolution of grievance proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Notice directed the applicant to file submissions regarding the issue of deferral.

3On November 22, 2011, the applicant filed brief submissions indicating that she opposed deferral. The applicant stated that if the Tribunal deferred her Application she would withdraw the grievance.

4On November 28, 2011, the respondents filed submissions stating that the applicant’s grievance is currently following normal process between the employer and the applicant’s union.

5On November 30, 2011, the applicant’s union, the Canadian Union of Public Employees, Local 1623 (“Union”) filed a Request to Intervene. The Union noted that, while a number of issues raised in the Application relate to the outstanding grievance, the Union takes no position with respect to deferral.

REQUEST TO INTERVENE

6As 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.

7In accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by a 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

8The Tribunal will generally defer an application where there is an on-going legal proceeding based on the same facts and issues. 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.

9Some 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 Baghdasserian v. 674469 Ontario, 2008 HRTO 404.

10The submissions, and information contained in the Tribunal’s file, confirm that there is an outstanding grievance related to the facts alleged in the Application. The Tribunal will generally defer an application where there is an ongoing grievance or arbitration under a collective agreement based on the same facts and issues.

11I see no reason to depart from this approach. It is apparent that there is substantial similarity between the facts and human rights issues covered by the Application and those referred to in the grievance. Furthermore, the grievance appears to seek similar remedies to those identified in the Application. I conclude that there is significant overlap in the subject matter of the Application and the outstanding grievance. In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of the applicant’s grievance.

DIRECTIONS

12The Tribunal orders as follows:

• The Union is added as an intervenor to this Application and the style of cause is amended to reflect the same; and

• The Application is deferred pending the conclusion of the applicant’s grievance.

13Where 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 (Rules 14.3 and 14.4).

14I am not seized of this matter.