Cooper v. Monarca, 2014 HRTO 1830

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karen Cooper

Applicant

-and-

Monarca and Central West Specialized Developmental Services

Respondents

-and-

Ontario Public Service Employees Union

Intervenor

INTERIM DECISION

Adjudicator: Paul Aterman
Date: December 29, 2014
Citation: 2014 HRTO 1830
Indexed as: Cooper v. Monarca

WRITTEN SUBMISSIONS

Monarca, Respondent

Renee Smith, Counsel

Central West Specialized Developmental Services, Respondent

Susan Scott, Representative

1Consideration of this Application, which alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), will be deferred until the completion of a pending arbitration hearing. The reasons below explain why.

2The applicant works for the respondent Central West Specialized Developmental Services. The respondent Monarca administers the employer’s disability benefits plan. The applicant has a disability. Benefits were initially granted to her and later were denied. She alleges that the denial was discriminatory.

3The applicant has brought this Application and her union has grieved the denial of benefits as well. The two grievances brought by the union allege that the employer is in breach of both the collective agreement and the Code. The grievances are scheduled to be heard by an arbitrator on March 11, 2015.

4The respondents have not yet been directed to file their Responses.

5The Tribunal has requested submissions on whether the Application should be deferred until the grievances are resolved. The applicant and the union have not filed submissions on this issue. The respondent Monarca takes no position on it and the respondent employer requests deferral.

6The 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 allegations of discrimination brought before it.

7In 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).

8As a result, where there is a pending grievance and there is an overlap of facts and issues between the pending grievance and the Application before the Tribunal, the normal practice of the Tribunal is to defer considering the Application.

9In this case there is a significant overlap of facts and issues. The Application and the grievances are about the same issues and both seek remedies for alleged violations of the Code. The grievance is proceeding to arbitration and none of the parties has put forward a reason to depart from the Tribunal’s normal practice. In these circumstances I determine that it is appropriate to defer consideration of this Application until the arbitration concludes.