Chun Fan v. Royal Ottawa Health Care Group, 2013 HRTO 1643

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chun Fan

Applicant

-and-

Royal Ottawa Health Care Group

Respondent

-and-

Canadian Union of Public Employees, Local 942

Intervenor

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: October 1, 2013

Citation: 2013 HRTO 1643

Indexed as: Fan v. Royal Ottawa Health Care Group

WRITTEN SUBMISSIONS

Chun Fan, Applicant

Self-represented

Royal Ottawa Health Care Group, Respondent

Richard Bird, Counsel

Canadian Union of Public Employees, Local 942, Respondent

Sue Lott, Counsel

1This is an Application filed on July 3, 2013 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of related grievance proceedings. It also addresses a Request to Intervene made by the applicant’s union, the Canadian Union of Public Employees, Local 942 (the “union”).

REQUEST TO INTERVENE

2In this Application the applicant alleges discrimination in employment on the basis of race and colour. She identifies herself as Chinese. She also indicates that she is claiming discrimination in the area of goods, services and facilities, but her narrative contains only allegations against the respondent as her employer. The applicant alleges that she came to the aid of another nurse at work, and was assaulted. She alleges that the employer has shown more concern for the other nurse, who was white, than it showed for her, and that she has been left with unanswered questions about the assault, due to the respondent’s failure to interview her after her traumatic workplace incident. She also alleges that she has been discriminated against in respect of income support. Additionally, she alleges that adequate safety equipment was not installed on the unit where she works, but that it was installed in other units. By way of remedy, she seeks unspecified financial compensation, praise for the staff who assisted her and to “set up examples of other nursing staff to help coworkers if they need help if someone in danger of life…but not run away as some nurses did during this traumatic incident”.

3The union submits that it seeks to intervene in order to be able to address “any remedy that might impact on the administration of the collective agreement or the bargaining unit”. Further, the union notes that it filed a grievance on the applicant’s behalf concerning the events which are outlined in her application. It states that the grievance only deals with the health and safety issues arising from the event and that it does not deal with any human rights issues. Finally, it advises that the grievance has been put “on hold” as the applicant has a WSIB claim.

4The respondent filed a Response opposing the union’s Request to Intervene. It submits that the union has an interest with respect to the issue of deferral, but that its status should simply be “interested party” until the issue of deferral of the Application is resolved. It submits that only the respondent is required to answer the allegations of discrimination and that there is no allegation that the union has discriminated against the applicant. It cites Upchurch v. MTI Mechanical Trade Industries Limited 2010 HRTO 1323 (“Upchurch”) and submits that the union has no legitimate interest in the Application, stating as that the union has not identified any risk of adverse impact, it “would not be affected if the remedies requested by the Applicant were granted”. It submits that the involvement of the union may only serve to prolong and increase the complexity of proceedings at the Tribunal, unnecessarily.

5The applicant has not made submissions regarding the union’s Request to Intervene.

6The union seeks to intervene in accordance with Rules 11.2 and 11.3 of the Tribunal’s Rules of Procedure. Though the respondent submits that the union does not have an interest in this Application as it has not identified any risk of adverse impact, I note that one of the remedies requested by the applicant appears to implicate other employees at the respondent employer. In any event, the remedy she seeks is not entirely clear, but to the extent that she seeks a mechanism to “set up examples of other nursing staff to help coworkers if they need help if someone in danger of life…but not run away as some nurses did during this traumatic incident”, it is quite possible that the remedy she seeks would have an impact on other bargaining unit members or the administration of the collective agreement. Accordingly, I am persuaded that the union has an interest in the outcome of the Application. The union’s request to intervene is granted.

WHETHER TO DEFER

7The applicant indicates in the Application that the facts of the Application are part of union grievance proceedings that are still in progress. She indicated in her Application that she was not seeking deferral and states that the grievance is “on hold”.

8In its Response, the respondent denies that it has discriminated against the applicant and also indicates that it is asking the Tribunal to defer the Application until the grievance proceeding is completed. It takes the position that the grievance deals with the same allegations with respect to workplace safety as are made in the Application.

9The respondent provided a copy of the grievance with its Response. The April 15, 2013 grievance alleges that the respondent has violated several articles of the collective agreement “and all other pertinent articles, policies and acts”. It provides the numbers of the articles being grieved, but does not indicate what those articles say. It also indicates that the grievance relates to an allegation that the employer did not take adequate steps to ensure the applicant’s safety. It seeks financial compensation for losses incurred due to her inability to return to work and it states that the employer must “recognize and adjudicate that this led to my constructive dismissal”.

10The applicant has filed a Reply to the Response, in which she objects to the respondent’s request to defer her Application pending the completion of the grievance process. She submits that in fact the grievance is not “in progress” and notes that the grievance has been in abeyance since May 29, 2013. She submits that in any event, no human rights issued are raised in the grievance.

11The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

12The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that 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).

13The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

14In this case, there may be some overlap between the facts covered by the Application and those referred to in the grievance. In considering whether to defer a matter pending the resolution of the grievance process, however, the Tribunal has also considered whether the grievance process is at a more advanced stage than is the Application. In this case, the grievance is in abeyance and it is not at all apparent when or if the matter will be referred to arbitration. Further, while some of the factual background pertinent to the grievance is also referred to in the Application, there is no indication that any human rights issue would be placed before an arbitrator should this matter ever proceed to arbitration. I not persuaded in this case that the orderly administration of justice favours deferral to the grievance process, a process which does not appear to have reached an advanced stage and which, in any event, is in abeyance.

15The Application will therefore not be deferred and will continue in the Tribunal’s process.

16At this point, not all parties have consented to mediation. The parties will advise the Tribunal within 7 days of this Interim Decision as to whether or not they consent to participate in mediation. Should the parties not all advise the Tribunal of their consent to participate in mediation, the Registrar will schedule a hearing in this matter.

ORDERS

17The Tribunal makes the following orders:

a) The union is granted status as an intervenor in this Application;

b) The parties will advise the Tribunal within 7 days of this Interim Decision as to whether they consent to participate in mediation;

c) If not all parties advise the Tribunal within 7 days of this Interim Decision of their consent to participate in mediation, the Registrar will schedule a hearing in this matter.

18I am not seized.