DeCaria-Franca Fagan v. Humber River Hospital, 2013 HRTO 1527

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

DeCaria-Franca Fagan

Applicant

-and-

Humber River Hospital

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: September 11, 2013
Citation: 2013 HRTO 1527
Indexed as: Fagan v. Humber River Hospital

WRITTEN SUBMISSIONS

DeCaria-Franca Fagan, Applicant
Erin Hallock, Counsel

Humber River Hospital, Respondent
Daryn M. Jeffries, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. The Application was deferred on consent on April 26, 2013 by Registrar’s letter.

2The applicant requests that the Application be reactivated prior to the conclusion of the concurrent proceeding – in effect no longer consenting to deferral.

analysis

3Rule 14 of the Tribunal’s Rules outlines the procedure by which a party may seek to bring the Application back on once the conditions set out in the deferral decision have been satisfied. Rule 14.4 states that:

Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.

4The applicant requests that the Application be reactivated because there was one hearing date in the concurrent union grievance at which time continuation dates were set that run into the summer of 2014. The applicant submits that the delay is prejudicial; that the subject matter of the grievance differs from that in this Application; and that while she is a party to this Application, she is not a “party” to the grievance application because the union is grieving on her behalf.

5The respondent submits that any delay is not prejudicial but accords with a normal timeline in such cases when there is an outstanding grievance; that the subject matter of the grievance and this Application overlap to a great extent; and that the applicant is a “party” to the grievance insofar as her interests are being represented by the union.

6I find that it is premature to reactivate this Application because of the overlap of the issues. 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, the Tribunal must also consider whether deferral is the most fair, just and expeditious way of proceeding with the Application.

7While the applicant characterized the overlap between the two proceedings as minimal, the applicant provided documents for the grievance proceeding that included this Application and documents that will be relied on in this Application. This is an indicator that there is significant overlap between the issues raised at the grievance and in this Application.

8The grievance dates are scheduled. Some, if not all, of the facts and issues raised in this Application are part of the grievance process that is still in progress. Both the Application and the grievances relate to the accommodation of the applicant’s medical condition and restrictions. Since the issues in the Application and the grievances overlap, proceeding with the Application at the Tribunal could very well lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievances. The primary purpose of deferring an Application is to avoid such potential inconsistency. I find that, in all of the circumstances, deferring the Application is appropriate. It will be the most fair and just way of proceeding, and since the grievances are already scheduled to be heard, it also will be expeditious.

9The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance process.