Moran v. Georgian Bay General Hospital, 2014 HRTO 15

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Moran

Applicant

-and-

Georgian Bay General Hospital

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: January 7, 2014

Citation: 2014 HRTO 15

Indexed as: Moran v. Georgian Bay General Hospital

WRITTEN SUBMISSIONS

Elizabeth Moran, Applicant

Linda Jane O’Neil, Representative

Georgian Bay General Hospital, Respondent

Andrew Zabrovsky, Counsel

Canadian Union of Public Employees, Local 3157, Intervenor

Devon Paul, Counsel

Introduction

1This Interim Decision addresses whether or not this Application should be deferred pending completion of a related grievance proceeding. It also addresses the request by the applicant’s union, Canadian Union of Public Employees and its Locals 3157 (“CUPE”), to intervene.

2This Application, which was filed on June 18, 2013, alleges discrimination with respect to employment because of disability contrary to Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Union filed a grievance on the applicant’s behalf on January 16, 2013, alleging the respondent violated the Code as well as other statutory provisions, by allowing the applicant to be harassed and bullied.

3On August 29, 2013, the respondents filed a Request that the Application be deferred pending the outcome of this grievance. The Tribunal required the respondent to file a full Response, which it did on October 31, 2013. In this Response, the respondent reiterates its request that the Application be deferred to the grievance.

4The applicant did not respond to the original Request to defer, but addressed the reasons for her opposition to deferral in her Reply.

5The Response also raises delay with respect to a portion of the allegations in the Application. This issue will be addressed should this matter be reactivated at a future point.

intervention

6The applicant is a member of the CUPE, which filed a Request to Intervene (Form 5) on August 1, 2013. The applicant filed a Response to the Request (Form 11), which solely addressed an unrelated issue raised in a letter to the Tribunal by counsel for CUPE. Neither the applicant nor the respondent opposed the Request to Intervene.

7The Tribunal has found on numerous occasions that a union nearly always has an interest in an application brought by a member of one of its bargaining units and that, absent exceptional circumstances, will be granted intervention status when it so requests it. Moreover, given CUPE’s involvement with the applicant concerning the grievance, it may be able to assist the Tribunal in determining some of the issues should this matter proceed to a hearing.

8Accordingly, CUPE is granted leave to intervene. Should the Application proceed to hearing, the scope of the CUPE’s intervention will be determined by the adjudicator hearing the matter.

DEFERRAL

9The 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.

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. 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).

11Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

12The parties appear to be in agreement that the grievance filed by CUPE deals with the issues raised in the Application. The respondent advised that the union referred the grievance to arbitration on October 31, 2013 and proposed the name of a sole arbitrator. At that point, the respondent had not accepted the proposed arbitrator, but it would appear from the applicant’s subsequent submissions that the arbitration is proceeding.

13The applicant is opposedto deferralbecause there are a few allegations in her Application against the person in CUPE assigned to represent her in the upcoming arbitration, thus putting him a “conflict of interest.” This is a matter more appropriately put before the arbitrator and not addressed by this Tribunal. Despite her position on the appropriateness of CUPE’s representative, the applicant appears to be prepared to proceed with the arbitration of her grievance.

14In this case, there is a real risk that the issues raised in the Application will be addressed by two adjudicative bodies – resulting in possibly conflicting decisions on the same matter – if this Application is allowed to proceed in the normal course. In the circumstances, the Application will be deferred pending the completion of the grievance process with respect to the applicant’s grievance.

15If the applicant believes, on conclusion of the grievance process, that her human rights issues have not been appropriately dealt with, she may ask to have her Application brought back on before the Tribunal. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. The parties should note that a request to reactivate must be filed no later than 60 days after the conclusion of the grievance process.

order

16In summary, the Tribunal has made the following orders:

a. CUPE is granted leave to intervene. Should the Application proceed to hearing, the scope of the CUPE’s intervention will be determined by the adjudicator hearing the matter.

b. The Application will be deferred pending the completion of the grievance process with respect to the applicant’s outstanding grievance.

17I am not seized.