HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Alan Davis on behalf of Jacqueline Morris Applicant
-and-
Caressant Care Nursing and Retirement Homes Ltd. Respondent
-and-
Ontario Nurses’ Association Intervenor
INTERIM DECISION
Adjudicator: Geneviève Debané Date: May 9, 2013 Citation: 2013 HRTO 776 Indexed as: Morris v. Caressant Care Nursing and Retirement Homes Ltd.
WRITTEN SUBMISSIONS
Alan Davis on behalf of Jacqueline Morris, Applicant James R. Morgan, Counsel
Caressant Care Nursing and Retirement Homes Ltd., Respondent Carolyn Johnston, Counsel
Ontario Nurses’ Association, Intervenor Danielle Bisnar, 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.
2This Interim Decision deals with:
a. The Ontario Nurses’ Association’s (“ONA”) Request to Intervene; and b. Whether it is appropriate to defer the Application pending the conclusion of the grievance and arbitration proceeding.
BACKGROUND
3On March 18, 2013, the respondent filed a Response seeking the deferral of the Application pending the conclusion of the grievance and arbitration proceeding. The respondent takes the position that the Ontario Nurses’ Association (“ONA”) has filed multiple grievances that remain outstanding including one grievance that alleges that the respondent has failed to provide a harassment free workplace in accordance with the Code. These grievances are currently being processed through the grievance procedure pursuant to the collective agreement and it appears that they are being referred to arbitration by ONA.
4ONA filed a Request to Intervene on March 18, 2013 and neither party has filed a response to this Request. Therefore, this Request is unopposed. It does not appear that ONA has taken a position on the issue of deferral of the Application.
5The applicant opposes the deferral of the Application on the basis that the grievances before the arbitrator are disciplinary in nature and that the remedies that an arbitrator can award are different then Tribunal remedies. The applicant agrees that there is an overlap of facts between the grievances and the Application.
REQUEST TO INTERVENE
6In Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, the Tribunal found that absent exceptional circumstances, the applicant’s bargaining agent will be granted intervenor status in Tribunal proceedings upon its request.
7Clearly, the Union’s interests are engaged in this matter given. The Request to Intervene is granted and the Union is granted Intervenor status. The extent of the Union’s participation in any future proceedings will be determined by the Vice-chair or Member who presides over those proceedings.
DEFERRAL
8The 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 Tribunal must consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.
9In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:
Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
Some of the factors that may be 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 type 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.
10The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. The applicant’s submissions with respect to the limited powers of an arbitrator are without foundation. It is clear that the issue of Code discrimination and harassment have been referred to in the grievances as filed and that any grievance arbitrator appointed to determine the grievances will have the jurisdiction to enforce the Code. 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).
11In this case, it is apparent that there is substantial overlap between the facts and allegations covered by the Application and those referred to in the grievances. It would not be constructive to have two proceedings consider concurrently the same facts as this may lead to contrary findings and decisions. I also note that in this matter, the arbitrator will have the jurisdiction to address all claims, including alleged violations of the collective agreement. Therefore, I find it is most fair, just and expeditious to defer this Application. The Application will be deferred pending the completion of the grievance and arbitration proceeding.
12It is not necessary for the Tribunal to address the respondent’s other requests at this time. In the event that this Application is reactivated by the Tribunal the respondent can renew its requests at that time.
ORDER
13The Tribunal orders:
a. The Ontario Nurses’ Association’s Request to Intervene is granted and the style of cause shall be amended; and b. The Application is deferred until the completion of the grievance and arbitration proceeding.
14The Tribunal directs the parties’ attention to Rule 14 which sets out the procedure if a party wishes to proceed with an Application that has been deferred pending the conclusion of another proceeding.
Dated at Toronto, this 9th day of May, 2013.
“Signed by”
Geneviève Debané Vice-chair