Thomas v. Sunnybrook Health Science Centre, 2014 HRTO 1339

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marcia Thomas Applicant

-and-

Sunnybrook Health Science Centre Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: September 10, 2014 Citation: 2014 HRTO 1339 Indexed as: Thomas v. Sunnybrook Health Science Centre

WRITTEN SUBMISSIONS

Marcia Marla Thomas, Applicant Self-represented

Sunnybrook Health Science Centre, Respondent Daniel Mayer, Counsel

Service Employees International Union, Affected Party Helen Nowak, Counsel

Introduction

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

2The applicant alleged that the respondent discriminated against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”). Among other things, she alleged that her manager bullied and harassed her, that she was discriminated against due to certain injuries she sustained, that the respondent reprised against her for contacting the Ministry of Labour, that she was unjustly disciplined on several occasions, that the respondent failed to pay her on certain occasions and that she was removed from her position.

3In addition to filing her Application, the applicant has filed several grievances with her union relating to the above matters. These grievances were enclosed with her Application and specifically referred to in the narrative of her Application.

4On July 8, 2014, the Tribunal sent a Notice of Intent to Defer (“NOID”) consideration of the Application pending the outcome of the grievances.

5In response to the NOID, the respondent took the position that deferral was appropriate. The respondent noted that some of the applicant’s grievances already have been addressed in an arbitral award. According to the respondent, the applicants other grievances are currently being addressed under the grievance procedures in the collective agreement.

6The applicant opposed deferral on the basis that the respondent allegedly continues to take unfair disciplinary actions against her. She specifically referred to a denial of sick pay in relation to which she has filed a grievance. The applicant stated that she preferred that her Application not be deferred as some outstanding grievances have still not been addressed.

7By correspondence dated August 14, 2014, the applicant’s union advised that the sick leave issue referred to in the applicant’s response to the Tribunal’s NOID has been resolved.

Decision

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). 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.

9There is an almost complete overlap between the allegations set out in the Application and the allegations contained in the applicant’s various grievances. Some of these grievances have been the subject of an arbitral award, at least one has been resolved and others continue to be dealt with through the procedures set out in the collective agreement applicable to the applicant. In these circumstances, 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 consideration of the Application.

10The 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. It should be noted that, a party wishing to proceed with an Application must file a request to proceed no later than 60 days after the conclusion of the other proceeding.

11The Tribunal’s Rules of Procedure are available on the Tribunal’s website, www.hrto.ca under “Law, Rules and Policies”.

Order

12The Application is deferred pending the outcome of the ongoing proceeding relating to the grievances filed on behalf of the applicant.

13I am not seized of this matter.