Human Rights Tribunal of Ontario
B E T W E E N:
Patricia Tracey
Applicant
-and-
The Ottawa Hospital
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Tracey v. The Ottawa Hospital
WRITTEN SUBMISSIONS
Patricia Tracey, Applicant ) Alayna Miller, Counsel
The Ottawa Hospital, Respondent ) Vicky Satta, Counsel
Canadian Union of Public Employees, ) Paul Boileua, Counsel
Affected Party )
1The applicant filed this Application on February 9, 2012, 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 race and sex. The applicant alleges that she has been discriminated against and subjected to a hostile work environment in relation to her race and pregnancies. The applicant’s narrative raises concerns with respect to differential treatment, harassment, improper discipline, failure to accommodate, request for medical information, and attendance management issues
2The applicant’s narrative indicates that she has three workplace grievances regarding some of the facts as alleged in the Application. The Application includes copies of the grievances from May, November, and December 2011.
3On March 7, 2012, the Tribunal issued a Notice of Intent to Defer (“Notice”). The Notice indicated that, pursuant to Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may defer an Application pending the resolution of another legal proceeding. The Tribunal invited the parties, and the applicant’s union, Canadian Union of Public Employees (“CUPE”), as an affected party, to file written submissions within 30 days of the date of the Notice as to why consideration of the Application should or should not be deferred.
4On March 27, 2012, CUPE wrote to the Tribunal and indicated that, while it is currently representing the applicant with respect to a grievance alleging misapplication of the respondent’s attendance management program, the applicant’s human rights Application contains facts which will not be the subject of the grievance and arbitration procedure.
5On April 10, 2012, the applicant filed submissions indicating that she is opposed to deferral because i) the Application encompasses human rights issues not the subject of the grievances; ii) the Application raises systemic issues which are best addressed through the Tribunal; iii) all parties agree to proceed through the Tribunal; and iv) the Tribunal is best to handle issues raised through the respondent’s internal human rights process.
6On April 10, 2012, the respondent filed submissions indicating that it supports deferral because the applicant’s grievances, two of which are currently proceeding through the normal grievance process, cover the same subject matter as raised in the Application. The respondent indicates that, since the grievances are ongoing, it would be more fair and efficient to defer the Application to avoid overlapping processes.
DEFERRAL
7The 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.
8Some 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.
9The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is on-going grievance under a collective agreement based on the same facts and issues as raised in the application. In so doing, the Tribunal has relied on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, wherein the Supreme Court of Canada confirmed 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.
10I see no reason to depart from the Tribunal’s general approach and find that deferral is warranted in the present circumstances. While the applicant seeks to circumscribe the human rights nature of her grievances, based on the parties’ submissions, it appears that two of the applicant’s three workplace grievances remain active and directly overlap with the substance of this