HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Donna Ellis
Applicant
-and-
Sunnybrook Hospital, Tracey Kitchen-Clarke and Jeffrey Upshaw
Respondents
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Ellis v. Sunnybrook Hospital
1This is an Application filed on December 29, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the basis of race, colour and reprisal. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of grievance proceedings.
2The applicant is a registered nurse. It appears that the Application’s principal allegations are that the respondents have not appropriately considered the applicant’s performance and that the applicant has been subject to ongoing differential treatment including harassment because of her race and colour.
3The Application refers to a broad range of incidents dating back to 2008. The Application is not always clear. It does not provide a single account of events but rather relies on a series of attached documents detailing specific incidents. The Application briefly refers to issues and incidents some of which are not referred to in the attached documents. Some incidents described in the attached documents are not referred to in the Application. It is not always clear if the applicant is alleging that a described incident involves a Code violation.
4The Application identifies that the applicant has a union grievance in progress. As a result the Tribunal issued a Notice of Intent to Defer dated March 29, 2012 in which it indicated that it might be appropriate for the Tribunal to defer consideration of the Application pending the resolution of the applicant’s grievance. The Tribunal indicated to the parties and to the applicant’s union, the Ontario Nursing Association, that they could make submissions as to why consideration of the Application should or should not be deferred. The Tribunal has received written submissions from the respondents.
5The respondents submit that the Application should be deferred on the basis that it is the subject of a grievance that currently deals with the substance of the Application. The respondents attach with their submissions a copy of a grievance filed by the applicant dated March 23, 2012 which states that the applicant is grieving a letter of discipline dated March 22, 2012 on the basis that it violates the Collective Agreement including the Collective Agreement’s discrimination and harassment free workplace provisions (Article 3). The respondents submit that the applicant considers her most recent disciplinary letter to be a continuation of alleged harassment by the respondents and thus the applicant will refer to much of the contents of the Application during her current grievance proceedings and eventually at arbitration. The respondents submit that if the Tribunal does not defer the Application there will be an unnecessary duplication of proceedings.
6The respondents also provide four other grievances filed by the applicant dated February 28, 2012 (grieving a disciplinary letter dated December 2, 2011); April 27, 2010 (grieving a March 31, 2010 disciplinary letter); June 26, 2009 (grieving a March 31, 2009 disciplinary letter and February 13, 2009 (grieving a December 9, 2008 disciplinary letter). The respondents do not indicate the current status of these grievances.
7I note that the applicant’s February 28, 2012 grievance is in relation to a letter in which the institutional respondent indicates that it is submitting a report to the Colleges of Nurses citing ongoing concerns about the applicant’s nursing competence arising over a three year period. This grievance also alleges that the institutional respondent’s actions violate the Code.
DECISION
8The 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 of the Tribunal’s Rules of Procedure). The purpose of deferring an application is to ensure that proceedings dealing with some or all of the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Given this purpose, the Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, in each case, the Tribunal must consider, in light of the particular circumstances, whether deferral is the most fair, just and expeditious way of proceeding with the Application.
9The principal issue I must decide in this case is the degree to which there is a potential overlap in the facts and issues that would be addressed in the applicant’s grievance proceeding and her proceeding before the Tribunal. Clearly, the principal issue of the applicant’s March 23, 2012 grievance which is a March 22, 2012 disciplinary letter which is not an issue raised in the applicant’s Application filed on December 29, 2011. The Application also raises a number of issues that do not appear to be the subject of any of the grievances before me. However, in my view there is indeed an overlap such that it is appropriate to defer the Application pending the outcome of the applicant’s grievance proceedings.
10I am satisfied that the applicant’s grievances, certainly her March 22, 2012 and February 28, 2012 grievances (which I presume is also ongoing) will, in some measure, address issues raised in the Application related to harassment and differential treatment. In my view, to proceed with the Application at this time would lead to two legal procedures addressing the respondents’ and applicant’s relationship over a similar period of time and relating to some of the same issues and that this could lead to inconsistent findings of fact and law. I am satisfied that to proceed with the Application at this time would be an inefficient and inappropriate use of the resources of the Tribunal and the parties and would not be the most fair, just or expeditious way to proceed. Consequently the Application is deferred.
11The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline the process by which the Application may be brought back on after the grievance process has been concluded.
12I am not seized.
Dated at Toronto, this 9th day of May, 2012.
“Signed by”
Eric Whist
Vice-chair