Morton v. Victorian Order of Nurses, 2013 HRTO 596

Human Rights Tribunal of Ontario

B E T W E E N:

Lucy Morton

Applicant

-and-

Victorian Order of Nurses, Germaine Lee, Irene Pasel, Sabina Lukas, Graham Kimble and Ron Mills

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: April 10, 2013

Citation: 2013 HRTO 596

Indexed as: Morton v. Victorian Order of Nurses

WRITTEN SUBMISSIONS

Victorian Order of Nurses, Germaine Lee, Irene Pasel, Sabina Lukas, Graham Kimble and Ron Mills, Respondents

Sarah Crossley, 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 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 February 6, 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 Public Service Employees Union (“OPSEU”), 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 two grievances, one which alleges discrimination and failure to accommodate the applicant’s disability in a return to work plan and the other that alleges further Code related discrimination and harassment. The respondents submit these grievances concern the same disputed facts and issues as those set out in the Application. The respondents submit that a four day arbitration hearing has been scheduled in August and November 2013 to consider the applicant’s grievances..

5The respondents submit that the Tribunal should follow its established practice and defer its proceedings pending the outcome of the applicant’s grievance and arbitration proceeding in order to avoid the duplication of legal processes, potentially conflicting determinations and the inefficient use of time and legal resources.

DECISION

6The 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.

7However, 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.

8I am satisfied, based on a review of the Application and the applicant’s two grievances, that a central issue in both the application and grievances is whether the respondents 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 (arbitration dates have been set) is the most fair, just and expeditious way of proceeding.

9The 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.

10I am not seized of this matter.