Ali v. The Ottawa Hospital, 2014 HRTO 1061

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Asli Ali

Applicant

-and-

The Ottawa Hospital, Susan Longbottom, Raizha Gramcko and Karen Stockton

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: July 21, 2014

Citation: 2014 HRTO 1061

Indexed as: Ali v. The Ottawa Hospital

INTRODUCTION

1This Application was filed on February 25, 2014, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination in employment.

2The applicant indicated in the Application that the facts of the Application are part of a grievance proceeding that is still in progress. On May 8, 2014, the Tribunal issued a Notice of Intent to Defer (“Notice”), seeking submissions from the parties and the applicant’s union, the Ontario Nurses Association (“ONA”), on the issue of deferral.

3This Interim Decision addresses whether the Application should be deferred pending the completion of related grievance proceedings.

DEFERAL

4In response to the Notice, the respondents support deferral, whereas the applicant opposes deferral. ONA takes no position on deferral, but explains that the applicant has two outstanding grievances, filed March 28 and July 12, 2012. A step 2 meeting was held on August 23, 2012, but the grievances are currently being held in abeyance pending the applicant’s return to work. ONA explains that it is unable to resolve the grievances until the applicant returns to work.

5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

6The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that 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).

7In the present case, based on the information before the Tribunal at this point in time, it appears that the outstanding grievances will continue to be held in abeyance pending the applicant’s return to work, and there is no indication as to when the applicant may return to work. Although there appears to be a substantial overlap between the facts and issues raised in the Application and those raised by the grievances, there is no indication at this time that the parties to the collective agreement intend to refer the grievances to arbitration. Given the absence of any indication that another proceeding is dealing with the issues in the Application, it is not appropriate for the Tribunal to defer this Application. As such, the Application will proceed.

8As the respondents were advised in the Notice that they need not file a Response at the time, the respondents are now directed to file a Response (Form 2) within 35 days of the date of this Interim Decision.