HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Loralee McNaughton

Applicant

-and-

Huron Perth Healthcare Alliance and Ann Pogue

Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: October 8, 2013 Citation: 2013 HRTO 1695 Indexed as: McNaughton v. Huron Perth Healthcare Alliance

WRITTEN SUBMISSIONS

Huron Perth Healthcare Alliance and Ann Pogue, Respondents

Barry Brown, 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 on the basis of disability.

2The applicant indicates in the Application that the facts of the Application are part of a grievance proceeding that is still in progress. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of the grievance proceeding.

3The Tribunal issued a Notice of Intent to Defer dated August 21, 2013, in which it indicated that it might be appropriate for the Tribunal to defer consideration of the Application pending the resolution of the applicant's grievance. The Tribunal indicated to the parties and to the applicant's bargaining agent, the Ontario Nurses Association, that they could make submissions as to why consideration of the Application should or should not be deferred. The Tribunal has received written submissions from the respondents.

4The respondents request that the Application be deferred. They submit that the applicant has filed a grievance dated May 30, 2013 that deals with the same subject matter as the Application and also complains of harassment and discrimination on the basis of the applicant's disability.

DECISION

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 purpose of deferring an application is to ensure that proceedings dealing with some or all of the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Given this purpose, the Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

6However, in each case, the Tribunal must consider, in light of the particular circumstances, whether deferral is the most fair, just and expeditious way of proceeding with an application. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

7I am satisfied, based on a review of the Application and the applicant's grievance, that a central issue in both the application and grievances is whether the respondents harassed and discriminated against the applicant on the basis of disability. In my view, to proceed with the Application at this time would lead to two legal procedures addressing many of the same issues and that this could lead to inconsistent findings of fact and law. I further note that grievance arbitrators not only have the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes. Accordingly, I am satisfied that deferring the Application to a grievance proceeding that is currently underway is the most fair, just and expeditious way of proceeding.

8The Tribunal directs the parties' attention to Rules 14.3 and 14.4 of the Tribunal's Rules of Procedure which outline the process by which an Application may be re-activated after being deferred. Where 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.

9I am not seized of this matter.

Dated at Toronto, this 8th day of October, 2013.