Tammy May v. Mill Creek Care Centre and Maureen Pauls, 2013 HRTO 1362

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tammy May

Applicant

-and-

Mill Creek Care Centre and Maureen Pauls

Respondents

Interim Decision

Adjudicator: Ena Chadha

Date: August 8, 2013

Citation: 2013 HRTO 1362

Indexed as: May v. Mill Creek Care Centre

WRITTEN SUBMISSIONS

Tammy May, Applicant

Joseph Tascona, Counsel

Mill Creek Care Centre and Maureen Pauls, Respondents

Steven Wilson, Counsel

1This Application was filed on May 30, 2013, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), alleging discrimination with respect to employment on the basis of disability. Along with her Application, the applicant provided a copy of a grievance, dated April 29, 2013, alleging discriminatory treatment with respect to her return to work and a failure to accommodate.

2On June 27, 2013, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal invited the applicant, the respondents and the applicant’s union (as an affected party), to file submissions as to why consideration of the Application should or should not be deferred.

3The applicant filed submissions on July 17, 2013 opposing deferral on the basis that it is uncertain as to when the grievance will be addressed.

4The respondents filed submissions on July 26, 2013 supporting deferral. The respondents submits that the Application should be deferred because the applicant’s union and the employer are proceeding to arbitration with respect to the applicant’s grievance.

5The applicant’s union filed submissions on July 29, 2013 also supporting deferral on the basis that the applicant’s grievance remains outstanding and has been referred to arbitration.

DEFERRAL

6The 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.

7Some 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.

8The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is an 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.

9I see no basis to depart from the Tribunal’s regular approach to defer an application where the application overlaps with an outstanding grievance. The applicant’s narrative clearly references events that relate to her grievance. In fact, the applicant’s grievance explicity states that the union is asserting that the employer breached the Code by refusing to reinstate the applicant after receipt medical evidence confirming her ability to return to work after a medical leave. The grievance also alleges discriminatory targeting and a failure to accommodate. The respondents and the union note that the grievance process is underway and that the same facts and issues are raised in both forums.

10In the interest of efficiency and to avoid concurrent proceedings, the Tribunal will defer this Application pending the conclusion of the grievance procedures.

11Accordingly, this Application deferred.

ORDERS

12The Application is deferred pending the conclusion of the grievance procedures. Where 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).

13I am not seized of this matter.