Moallim v. CSH Westmount LTC Inc., 2013 HRTO 1404

Human Rights Tribunal of Ontario

B E T W E E N:

Hakima Moallim Applicant

-and-

CSH Westmount LTC Inc. Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: August 15, 2013 Citation: 2013 HRTO 1404 Indexed as: Moallim v. CSH Westmount LTC Inc.

WRITTEN SUBMISSIONS

CSH Westmount LTC Inc., Respondent

Pamela Leiper, Counsel

1The applicant filed this Application on June 3, 2013 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, (the "Code") as amended, alleging discrimination with respect to employment on the basis of disability.

2The applicant alleges that the respondent employer has refused to provide appropriate accommodation for her work related injury. The Application noted that the applicant has an on-going Workplace Safety and Insurance Board ("WSIB") claim, as well as a workplace complaint. The applicant provided documentation regarding these matters.

3On June 26, 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 respondent 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.

4The respondent filed submissions on July 25, 2013 supporting that the Application be deferred pending the conclusion of the workplace complaint process and the WSIB proceedings. The respondent notes that, as a result of statutory freeze provisions of the Labour Relations Act, it has reached an agreement with the union regarding an interim complaint procedure for processing employee grievances while collective bargaining is underway. The applicant's union launched an internal failure to accommodate complaint, which has been referred to binding mediation/arbitration pursuant to the agreement between the employer and the union. The respondent further notes that on February 16, 2013, the WSIB informed it that the applicant has appealed a decision with respect to her claim.

5The applicant and the applicant's union did not file submissions.

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 applicant's workplace complaint was commenced prior to this Application. The complaint is made by the applicant's union on her behalf and references the terms of the previous collective agreement. Having reviewed the applicant's workplace complaint, it appears that claim pertains to the same disability-accommodation concerns which are alleged in the Application and the applicant seeks similar remedies in both matters.

9Based on the parties' materials, it appears that the workplace grievance procedures have been converted to an interim complaints process while the employer and union negotiate a collective agreement. The union and the employer have agreed to forward unresolved complaints to binding mediation/arbitration. The respondent indicates that the applicant's failure to accommodate complaint is scheduled to be heard by Arbitrator Jessin on September 27, 2013.

10The 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.

11In this case the employer and the union's interim complaints process operates in lieu of grievance procedures and results in binding mediation/arbitration. As such, I see no basis to depart from the Tribunal's regular approach to defer an application where a grievance based on the same incidents alleged in the application is proceeding to arbitration.

12In the interest of efficiency and to avoid concurrent proceedings, the Tribunal will defer this Application pending the completion of the mediation/arbitration process. The Tribunal does not have sufficient information to determine at this time whether the Application should be deferred because of the WSIB claim.

ORDER

13The respondent indicated that the Application identifies it by an incorrect name. Accordingly, the style of cause is amended to reflect the respondent's proper legal name, CSH Westmount LTC Inc., as noted in the respondent's submissions.

14The Application is deferred pending the conclusion of the mediation/arbitration process.

15Where 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).

16I am not seized of this matter.