Shelley Courtney v. Caressant Care Nursing & Retirement Homes Limited, 2013 HRTO 928

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shelley Courtney

Applicant

-and-

Caressant Care Nursing & Retirement Homes Limited

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: May 28, 2013

Citation: 2013 HRTO 928

Indexed as: Courtney v. Caressant Care Nursing & Retirement Homes Ltd.

1This Interim Decision deals with the respondent’s request that the Tribunal defer further consideration of the Application pending the conclusion of a grievance procedure and an objection filed by the applicant to a decision of the Workplace Safety and Insurance Board (“WSIB”).

2The applicant filed a reply to the respondent’s request, stating that that she agrees that the Application should be deferred.

3Some 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.

4The Tribunal will generally defer when there is a concurrent on-going grievance because labour arbitrators have the jurisdiction to consider and apply the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) when dealing with a grievance under a collective agreement.

5The Tribunal may also defer to an on-going proceeding at the WSIB but may allow a party to request that the Application be re-activated if the proceeding at the WSIB becomes prolonged or is no longer concerned with the subject matter of the Application.

Direction

6In this case a grievance was filed in December 2012, which alleged among other things that the respondent employer had infringed the applicant’s Code-protected rights. It appears that the subject matter of the grievance overlaps with the subject matter of the Application.

7In these circumstances, it is appropriate to defer further consideration of the Application pending the resolution of the grievance proceeding.

8If the applicant wishes to re-activate the Application after the grievance proceeding has been resolved, she must provide information about the status of her claim with the WSIB so that an assessment can be made about whether the Application as it relates to any proceeding before the WSIB that may be underway at that time.

9The Tribunal’s Rules of Procedure require that a request to re-activate an Application that has been deferred pending the conclusion of another proceeding must be made within six months of the date that the other proceeding is concluded.