Bates v. Lakeridge Health, 2014 HRTO 35

Human Rights Tribunal of Ontario

Between:

Linda Bates Applicant

-and-

Lakeridge Health and Ontario Nurses Association Respondents

Interim Decision

Adjudicator: Alison Renton Date: January 9, 2014 Citation: 2014 HRTO 35 Indexed as: Bates v. Lakeridge Health

Written Submissions

Linda Bates, Applicant No submissions filed

Lakeridge Health, Respondent Jessica Kearsey, Counsel

Ontario Nurses Association, Respondent No submissions filed

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of disability. The applicant has named both her employer and her union as respondents.

2The Tribunal issued a Notice of Intent to Defer ("NOID") to the parties on November 5, 2013 seeking the parties' submissions on whether it was appropriate to defer the Application pending the resolution of another legal proceeding, a grievance, and advising that the respondent employer was not yet required to file a Response. The Tribunal, through administrative error, identified the respondent union as an affected party rather than as a respondent, but sent the NOID to it as well. The respondent employer requested an extension to respond to the NOID which was granted by the Tribunal.

3On December 23, 2013, the respondent employer filed a Response to the Application. In it, the respondent employer requested that the Tribunal dismiss the Application because of minutes of settlement into which the parties entered which resolved the issues in the grievance which was the same subject-matter as the issues raised in the Application. The respondent employer noted that the arbitration of the grievance occurred before the respondent employer became aware of the Application, and that the arbitrator remains seized with respect to the minutes of settlement and the parties' tripartite ongoing accommodation duties.

4Neither the applicant nor the respondent union have filed submissions in response to the NOID and the time for doing so has elapsed. The applicant has not filed a Reply to the Response, although she has not been specifically directed to do so by the Tribunal.

5In these circumstances, given the apparent settlement of the grievance and the failure of the applicant and the respondent union to respond to the Response or file submissions in relation to the NOID, the Tribunal will not defer the Application pending the conclusion of the grievance process.

6Instead, it is appropriate to determine whether or not the Application can continue to proceed. In this respect, the Tribunal directs the applicant to advise the Tribunal within 7 days of the date of this Interim Decision, copying the respondents, whether or not she intends to proceed with her Application. If she does not intend to proceed with her Application, she is directed to file a Form 9, Request to Withdraw ("Form 9") with the Tribunal, copying the respondents. A copy of the Form 9 can be found on the Tribunal's website, www.hrto.ca under the heading "Guides & Forms".

7If the applicant does intend to proceed with her Application, the Tribunal will schedule a hearing to determine whether or not the Application should be dismissed pursuant to the respondent employer's request in its Response. Further details about that hearing would be issued to the parties under separate cover.

8If the applicant does not provide any response to the Tribunal within 7 days of the date of this Interim Decision, her Application will be dismissed as abandoned.

9I am not seized with this matter.