Garratt v. Georgian Bay General Hospital, 2013 HRTO 1658

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gregory Garratt

Applicant

-and-

Georgian Bay General Hospital

Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: October 2, 2013

Citation: 2013 HRTO 1658

Indexed as: Garratt v. Georgian Bay General Hospital

WRITTEN SUBMISSIONS

Gregory Garrett, Applicant

No submissions

Georgian Bay Hospital, Respondent

Bill Whittaker, Representative

1This is an Application filed on July 2, 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 a related grievance proceeding.

2The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and encloses a copy of the grievance filed on his behalf by his union, Service Employees International Union, Local 1(the "union"). He indicated in his Application that he was not seeking deferral.

3On August 21, 2013, the Tribunal sent a Notice of Intent to Defer (NOID) to the parties, inviting the applicant, the respondent, and the union to make submissions regarding why consideration of the Application should or should not be deferred. The respondent filed submissions on August 29, 2013, supporting deferral pending the conclusion of the grievance process. The union wrote to the Tribunal on August 26, 2013, indicating that it would not be seeking intervenor status in this Application and advising that it had filed a grievance "based on the same or similar facts" to those in the Application, and confirming that the grievance remains active. The applicant has made no separate submissions regarding the issue of deferral.

4In his Application, the applicant alleges that the respondent has discriminated against him in employment on the basis of race and he also alleges reprisal or threat of reprisal contrary to the Code. His allegations appear to relate to work assignment and scheduling which he alleges has interfered with his ability to participate in cultural events in his aboriginal community.

5The applicant provided a copy of a grievance filed on his behalf by his union. The grievance is dated June 3, 2013 and alleges a violation of the collective agreement, citing scheduled "on-call" and mandatory "stand-by". It seeks to have the applicant removed from "on-call".

6The 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.

7The 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).

8The 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.

9In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. I am satisfied that there is nothing before me which would justify a departure from the Tribunal's normal approach. The matter is still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant's grievance will be referred to arbitration. But if the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

10The Application will therefore be deferred pending the completion of the grievance process.

11The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.