Davis v. Sherwood Park Manor, 2013 HRTO 1997

Human Rights Tribunal of Ontario

B E T W E E N:

Dorothy Davis Applicant

-and-

Sherwood Park Manor Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: December 2, 2013 Citation: 2013 HRTO 1997 Indexed as: Davis v. Sherwood Park Manor

Introduction

1The applicant filed an Application on September 10, 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 proceeding.

2The applicant indicates in the Application that the facts of the Application are part of a union grievance that is still in progress. She also enclosed a copy of the grievance as well as a copy of the referral to arbitration. ln her Application, the applicant also indicates that the facts of the Application are also part of an ongoing Workplace Safety and Insurance Board ("WSIB") proceeding. However, no further particulars were provided regarding the WSIB proceeding.

3On October 25, 2013, the Tribunal issued a Notice of Intent to Defer ("NOID") the Application due to another legal proceeding dealing with the subject-matter of the Application. The parties were advised that they could make submissions to the NOID by no later than 30 days of the date of NOID. None of the parties filed submissions with the Tribunal and the date for doing so has now passed.

4The 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.

5The 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).

6The 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.

7In 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. Based on the materials filed with the Tribunal, it is apparent that the applicant's grievance was referred to arbitration. The Application will therefore be deferred pending the completion of the grievance process.

8If the applicant believes, on conclusion of the grievance process, that her human rights issues have not been appropriately dealt with, she may ask to have her Application brought back on before the Tribunal. The 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. The parties should note that a request to reactivate must be filed no later than 60 days after the conclusion of the grievance process.