Dodge v. Niagara Region, 2014 HRTO 432

Human Rights Tribunal of Ontario

BETWEEN:

Dawn Dodge Applicant

-and-

Niagara Region Respondent

-and-

Canadian Union of Public Employees and its Local 1287 Intervenor

INTERIM DECISION

Adjudicator: Jay Sengupta Date: March 27, 2014 Citation: 2014 HRTO 432 Indexed as: Dodge v. Niagara Region

APPEARANCES

Dawn Dodge, Applicant Self-represented

Niagara Region, Respondent Daryn Jeffries, Counsel

Canadian Union of Public Employees and its Local 1287, Intervenor Mona Staples, Counsel

Introduction

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.

2In the Application, the applicant notes that she is a member of the Canadian Union of Public Employees and its Local 1287 ("CUPE Local 1287") and that the facts of the Application are part of another proceeding that is still in progress.

3This Interim Decision addresses the following issues: (1) the Request to Intervene made by CUPE Local 1287 and (2) the issue of whether to defer the Application pending completion of the grievance proceeding currently underway.

INTERVENTION

4CUPE Local 1287 filed a Request to Intervene (Form 5) on the basis that it is an interested party. It has filed a grievance on behalf of the applicant, over which it has carriage. Moreover, it is the exclusive bargaining agent for the applicant. It indicates that "the remedies sought by the Applicant could affect the employees in the CUPE bargaining unit and would be subject to the terms of the CUPE collective agreement".

5The applicant and the respondent did not take advantage of their opportunity under Rule 11.4 to file a response to the Request to Intervene, and have therefore neither agreed nor objected to the proposed intervention.

6A union almost always has an interest in a human rights application involving a member, and unless there are exceptional circumstances, the Tribunal will grant the bargaining agent intervenor status when requested. In this case, I can see no reason, to deny the union's request to intervene. The Request to Intervene is granted. The extent of the intervenor's participation in the Tribunal's proceedings will be determined by the Tribunal at the appropriate time.

DEFERRAL

7On November 7, 2013, a Notice of Intent to Defer was sent to the parties and the union.

8The union takes no position with respect to the issue of deferral.

9The applicant opposes deferral on the basis that she wishes to have the facts underlying the Application resolved at the earliest possible time as the ongoing dispute in respect of her workplace accommodations is having a detrimental effect on her health.

10The respondent supports deferral and argues that the grievance deals with the same subject matter as the Application, specifically the applicant's workplace accommodations and her workspace. In correspondence dated December 12, 2013, the respondent indicates that the grievance was filed on October 11, 2013. On November 19, 2013, a Step 2 Grievance meeting was held and the respondent denied the Grievance at Step 2 by way of correspondence dated November 29, 2013. The respondent points out that if the grievance is not resolved, the intervenor union will have the opportunity to carry the grievance forward through the process which may lead to a grievance arbitration.

11The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application. 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).

12In light of substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance, I am satisfied that deferral is appropriate. If the applicant believes, on conclusion of the grievance/arbitration process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

13The Application will therefore be deferred pending the conclusion of the grievance process. 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.

14I am not seized of this matter.