Newell v. Liquor Control Board of Ontario, 2013 HRTO 822

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wendy Newell

Applicant

-and-

Liquor Control Board of Ontario

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: May 15, 2013

Citation: 2013 HRTO 822

Indexed as: Newell v. Liquor Control Board of Ontario

WRITTEN SUBMISSIONS

Wendy Lee Newell, Applicant

Self-represented

Liquor Control Board of Ontario, Respondent

Adrienne Couto, Counsel

Ontario Public Service Employees Union, Affected Party

Adrienne Liang, Counsel

Introduction

1The purpose of this Interim Decision is to determine whether this Application should be deferred pending the resolution of the grievances filed by the Applicant.

2The applicant alleges that the respondent discriminated against her on the grounds of disability when it failed to provide reasonable accommodations for an injury she sustained at work. The applicant filed two grievances with her union in which she alleged that the employer had failed to accommodate her medical restrictions. The applicant’s grievances are ongoing.

3On March 27, 2013, the Tribunal sent a Notice of Intent to Defer to the parties indicating that the Tribunal had determined that it might be appropriate to defer consideration of the Application pending the resolution of the applicant’s grievances. The Tribunal invited the parties, and the applicant’s union, as an affected party, to provide written submissions on the issue.

4Only the respondent filed submissions in response to the Notice. The respondent submitted that it would be appropriate to defer consideration of the Application pending the resolution of the grievances.

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). Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. 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 a part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. Thus, the Tribunal will generally defer an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

6Since the issues in the Application and the grievances are the same, proceeding with the Application could lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievance. As a result, I find it appropriate to defer this Application pending the completion of the grievance proceeding in this matter.

7The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance proceedings. In particular, the parties should note that a request to proceed with the Application would have to filed no later than 60 days after the conclusion of the grievance proceeding. The Rules of Procedure are available on the Tribunal’s website, www.hrto.ca under “New Applications”.

8I am not seized of this matter.