Walsh v. St. Joseph’s Healthcare Hamilton, 2015 HRTO 1610

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cynthia Aldred Walsh Applicant

-and-

St. Joseph’s Healthcare Hamilton Respondent

-and-

Ontario Public Service Employees’ Union Local 206 Affected Party

INTERIM DECISION

Adjudicator: David Muir Date: November 27, 2015 Citation: 2015 HRTO 1610 Indexed as: Walsh v. St. Joseph’s Healthcare Hamilton

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to contracts because of sex.

2On September 16, 2015 the Tribunal issued a Notice of Intent to Defer (“NOID”) this Application pursuant to s. 45 of the Code pending the conclusion of a grievance arbitration related to some or all of the same facts and issues as are raised in the Application.

3The respondent supports deferral because the issues raised in the arbitration are essentially the same as those in this case.

4The affected party takes no position on the NOID and did not respond to a prior Direction of the Tribunal to clarify the status of the grievance.

5The applicant opposes deferral on the basis that the decision of an arbitrator will apply only to her workplace and that a Tribunal decision would benefit all similarly situated employees in Ontario.

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.

7However the Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts. 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).

8In any case where the parties are already engaged in a concurrent legal proceeding in which they are raising all or some of the same 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.

9In this case, the issues raised in the two proceedings are identical. Accordingly, it is appropriate to defer this Application – one of the important reasons to defer being to avoid different conclusions about the facts in two concurrent proceedings. As regards, the applicant’s understanding of the effect of a decision of the Tribunal it is in fact no different than that of an arbitrator in the sense that its decision would only directly apply to the parties to the Application, in this case the applicant and the respondent.

10The Application will therefore be deferred pending the completion of the grievance process.

11The 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. The other matters raised by the respondent and the affected party will be dealt with by the Tribunal if the Application is brought back on.

12I am not seized of this case.