HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michelle Kinney

Applicant

-and-

Middlesex-London Emergency Medical Services Authority

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: July 26, 2013

Citation: 2013 HRTO 1308

Indexed as: Kinney v. Middlesex-London Emergency Medical Services Authority

WRITTEN SUBMISSIONS

Michelle Kinney, Applicant ) Self-represented

Middlesex-London Emergency Medical ) John W. Saunders, Counsel Services Authority, Respondent )

INTRODUCTION

1The purpose of this Interim Decision is to decide whether the Tribunal should defer consideration of the Application pending the conclusion of a grievance proceeding.

BACKGROUND

2In 2001, the applicant began working as a paramedic for Thames Emergency Medical Services (“Thames EMS”), which was contracted to provide land ambulance services for the County of Middlesex (the “County”) and the City of London. The Ontario Public Service Employees Union (the “Union”) was the certified bargaining agent for the paramedic employees of Thames EMS.

3In mid-2011, following a workplace injury, the applicant went off work and began receiving Workplace Safety and Insurance Board (“WSIB”) benefits.

4Later in 2011, the County decided to switch its services provider from Thames EMS to the respondent. Thames EMS notified its paramedic employees that their employment would be terminated effective March 25, 2012, when the respondent was scheduled to take over responsibility for land ambulance services for the County and the City.

5Pursuant to a Transition Agreement between the respondent and the Union, all paramedic employees with Thames EMS were offered positions with the respondent, except for employees receiving WSIB and/or long term disability benefits, who would only become employees when they were able to perform the essential duties of a paramedic.

6In late March 2012, the Union filed a grievance on behalf of the applicant, which alleged that Thames EMS was terminating her employment because of her workplace injury, which was contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The grievance was referred to and is currently in arbitration.

7On March 25, 2013, the applicant filed an Application under s. 34 of the Code, which alleged that the respondent discriminated against her with respect to employment because of her disability. Specifically, she alleged that pursuant to the Transition Agreement, the respondent would not hire her because she was receiving WSIB benefits as a result of a workplace injury.

8In section 14 of the Application, the applicant acknowledged that the facts of the Application are part of a union grievance proceeding that is still in progress, but did not request that the Tribunal defer her Application until the grievance proceeding is completed.

9On April 5, 2013, the Tribunal’s Registrar sent the parties and the applicant’s Union a letter, which requested written submissions on the issue of deferral. The respondent and the applicant filed submissions, but the Union did not, and the time for doing so has now passed.

ANALYSIS

10Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that the 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. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

11In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some 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.

12In its submissions, the respondent stated that the Tribunal should defer consideration of the Application because substantially the same facts and issues are presently the subject of a grievance arbitration. The respondent acknowledged that it is not a party in the arbitration, but stated that it is attending the hearing because it has a stake in its outcome. The respondent also stated that the Tribunal has recognized that the mere fact that one party to an Application is not a party to another related legal proceeding is not sufficient grounds alone to deny an otherwise valid deferral request. See Pando v. Colleges of Applied Arts and Technology Pension Plan, 2009 HRTO 59.

13In her submissions, the applicant stated that the Tribunal should not defer consideration of the Application because the respondent is not a party in the arbitration process, and has attended the proceeding merely as a witness.

14In my view, deferral is not the most fair, just and expeditious way of proceeding with the Application. Although there are concurrent proceedings before the arbitrator and the Tribunal which flow from the same overall facts, the two proceedings are dealing with distinct issues involving different employers. Specifically, the proceeding before the arbitrator is dealing with the termination of the applicant’s employment by Thames EMS, while the proceeding before the Tribunal is dealing with the respondent’s alleged failure to hire the applicant.

ORDER

15The Tribunal shall not defer consideration of the Application pending the conclusion of the grievance proceeding, and will continue to process the Application in the normal course.

16I am not seized of this matter.