Lamothe v. Extendicare Falconbridge, 2014 HRTO 488

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gisele Lamothe

Applicant

-and-

Extendicare Falconbridge

Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: April 8, 2014

Citation: 2014 HRTO 488

Indexed as: Lamothe v. Extendicare Falconbridge

1This is an Application filed on January 17, 2014 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant indicates in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress, and encloses a copy of the grievance filed on her behalf by her union, Service Employees International Union (“SEIU”) Local 1 Canada (the “union”).

3On February 28, 2014, the Tribunal issued a notice of intent to defer the Application pending the resolution of the grievance. The Tribunal requested the parties’ submissions on the proposed deferral by March 28, 2014. The applicant and the respondent did not provide submissions on the deferral question. The union provided submissions and advised the Tribunal that the applicant’s grievance is being referred to arbitration.

4The 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.

5The 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).

6The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where 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.

7In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The matter is still live and the grievance process has not concluded. If the applicant believes, on conclusion of the grievance process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

8The Application will therefore be deferred pending the completion of the grievance process.

9The 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.

ORDER

10The Application is deferred.