Curry v. Waypoint Centre for Mental Health Care, 2015 HRTO 12

Human Rights Tribunal of Ontario

B E T W E E N:

Caroline Curry

Applicant

-and-

Waypoint Centre for Mental Health Care and Josh Mace

Respondents

INTERIM DECISION

Adjudicator: Alison Renton
Date: January 6, 2015
Citation: 2015 HRTO 12
Indexed as: Curry v. Waypoint Centre for Mental Health Care

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant is represented in the workplace by the Ontario Public Service Employees Union (“the union”) and has filed a grievance pertaining the period May to July 2014 after she had a workplace injury. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The Tribunal issued a Notice of Intent to Defer dated October 16, 2014 to the parties and requested submissions on whether the Application should be deferred pending completion of a grievance proceeding.

3The respondents filed a joint Response in which they submit that the Application should be dismissed. They state that the grievance was scheduled for mediation in December 2014 and for arbitration in July 2015 before an arbitrator.

4The union also filed submissions. It opposes deferral. It is unclear whether these submissions are filed on behalf of the applicant, as the applicant has not filed submissions, or on its own behalf, notwithstanding that it has not yet sought intervenor status in this proceeding. The union submits that the issue before the arbitrator will be whether the applicant was entitled to sick pay and raises issues about the corporate respondent not involving the union during its meetings with the applicant.

5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1 of the Tribunal’s Rules of Procedure (“the Rules”)). 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.

6The 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).

7The 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.

8In 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 grievance seeks a remedy for the period May 24 to July 7, 2014, which is the same period addressed in the Application. The matter is still live and the grievance process has not concluded. If the applicant believes, on conclusion of the process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

9The Application will therefore be deferred pending the completion of the grievance and arbitration process.

10Rule 14.4 of the Tribunal’s Rules requires a party to request to proceed with the Application no later than 60 days after the conclusion of the other proceeding. The parties’ attention is directed 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.

11I am not seized with this matter.