Angela Clark-Henry v. CSH Wenleigh LTC Inc., 2013 HRTO 1599

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angela Clark-Henry

Applicant

-and-

CSH Wenleigh LTC Inc.

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: September 25, 2013

Citation: 2013 HRTO 1599

Indexed as: Clarke-Henry v. CSH Wenleigh LTC Inc.

WRITTEN SUBMISSIONS

Angela Clarke-Henry, Applicant

James R. Morgan, Counsel

CSH Wenleigh LTC Inc.., Respondent

Pamela Leiper, Counsel

O.F.H.C.W. Local 110, Affected Party

Ryan White, Counsel

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.

2This Interim Decision deals with whether it is appropriate to defer the Application pending the conclusion of grievance and arbitration proceedings.

BACKGROUND

3On July 15, 2013, the respondent filed a Response seeking the deferral of the Application pending the conclusion of proceedings related to grievances filed on behalf of the applicant by the Ontario Federation of Health Care Workers, LIUNA Local 1110 ("the union"), and pending the conclusion of the applicant's appeal of a decision by the Workplace Safety and Insurance Board ("WSIB"). The respondent takes the position that the grievances include the facts and issues raised in the Application, particularly the termination of the applicant's employment. These grievances are currently being processed through the grievance procedure pursuant to the parties' collective agreement and it appears that they at the arbitration stage.

4The Tribunal requested that the applicant reply to the respondent Response, including the request to defer the Application, but the applicant did not reply, and the time for doing so has passed.

DEFERRAL

5The 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 Tribunal must 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.

6In 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.

7The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and issues. The Supreme Court of Canada has affirmed 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 (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

8In this case, it is apparent that there is substantial overlap between the facts and allegations covered by the Application and those referred to in the grievances. It would not be constructive to have two proceedings consider concurrently the same facts as this may lead to contrary findings and decisions. I find it is most fair, just and expeditious to defer this Application. The Application will be deferred pending the completion of the grievance and arbitration proceedings.

9It is not necessary at this time for the Tribunal to address the union's Request to Intervene or the respondents' request to defer the Application pending the outcome of the applicant's WSIB appeal. In the event that this Application is reactivated by the Tribunal, the respondent and the union can renew their requests at that time.

ORDER

10The Application is deferred pending the outcome of the grievance and arbitration proceedings.

11The Tribunal directs the parties' attention to Rule 14 which sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding.