HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hongru Cao
Applicant
-and-
The Ottawa Hospital
Respondent
Interim Decision
Adjudicator: Ena Chadha
Indexed as: Cao v. The Ottawa Hospital
WRITTEN SUBMISSIONS
The Ottawa Hospital, Respondent
Raquel Chisholm, Counsel
1This Application was filed on January 17, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), alleging discrimination with respect to employment on the basis of race. Along with her Application, the applicant provided a copy of a grievance, dated October 30, 2012, alleging suspension without just cause and a copy of a second grievance, dated November 13, 2012, alleging harassment.
2On February 8, 2013, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject matter of the Application pursuant to Rule 14 of the Tribunal’s Rules of Procedure. The Tribunal invited the applicant, the respondent and the applicant’s union (as an affected party), to file submissions as to why consideration of the Application should or should not be deferred.
3The respondent filed submissions on March 8, 2013 supporting deferral. The respondent submits that the Application should be deferred pending the conclusion of the grievance process in relation to the applicant’s two grievances. The respondent also notes the parties are participating in an internal investigation which is underway regarding the applicant’s Code of Conduct complaint.
4Neither the applicant nor the applicant’s union filed submissions regarding the issue of deferral.
Deferral
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). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently.
6Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.
7The Tribunal generally defers applications where the parties are already engaged in a concurrent legal proceeding, particularly when the other proceeding is an on-going grievance under a collective agreement based on the same facts and issues as raised in the Application. In so doing, the Tribunal has relied on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, wherein the Supreme Court of Canada confirmed 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.
8I see no basis to depart from the Tribunal’s regular approach to defer an application where the application overlaps with an outstanding grievance. The applicant’s narrative clearly references events that relate to her two workplace grievances. The respondent notes that the grievance process is underway and that the same facts and issues are raised in both forums. In the interest of efficiency and to avoid concurrent proceedings, the Tribunal will defer this Application pending the conclusion of the grievance procedures.
9Accordingly, this Application is deferred
ORDERS
10The Application is deferred pending the conclusion of the grievance procedures. 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 (Rules 14.3 and 14.4).
11I am not seized of this matter.
Dated at Toronto, this 2nd day of May, 2013.
”signed by”
Ena Chadha
Vice-chair