Morris v. Ontario (Health and Long-Term Care), 2015 HRTO 366

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gayle Anne Morris Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care, Primary Health Care Branch Respondent

A N D B E T W E E N:

Gayle Anne Morris Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the minister of Health and Long-Term Care, Primary Care Branch, Laura Pinkney, and Donna McQuillan Respondents

INTERIM DECISION

Adjudicator: Alison Renton Date: March 23, 2015 Citation: 2015 HRTO 366 Indexed as: Morris v. Ontario (Health and Long-Term Care)

WRITTEN SUBMISSIONS

Gayle Anne Morris, Applicant William Florence, Counsel

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Health and Long-Term Care, Primary Health Care Branch, Respondent Caroline Cohen, Counsel

1This Interim Decision addresses the issue of consolidation and deferral.

Consolidation

2The Application alleges discrimination with respect to employment because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) (“the Second Application”). The applicant has filed an earlier Application to which file number 2011-09548-I has been assigned (“the First Application”). The First Application is deferred pending the conclusion of the grievance process as set out in Interim Decision, 2011 HRTO 2265.

3In the Second Application, the applicant requests that it be consolidated and heard together with the First Application. The respondent does not oppose consolidation.

4Accordingly, the two Applications will be consolidated and heard together.

Deferral

5The Tribunal issued a Notice of Intent to Defer dated November 10, 2014 (“the NOID”) to the parties and the association that represents her in the workplace, The Association of Management, Administrative, and Professional Crown Employees of Ontario (“AMAPCEO”) about the Second Application. In the NOID, the Tribunal stated that it may be appropriate to defer the Second Application pending the resolution of another legal proceeding, the grievance procedure, in light of grievances that the applicant attached to her Second Application.

The Respondent and AMAPCEO’s Submissions

6Both the respondent and AMAPCEO, although it has not requested intervenor status, filed submissions in support of deferring the Second Application. They submit that there have been 13 hearing days before the Grievance Settlement Board (“GSB”), with 4 more to be scheduled addressing the applicant’s issues up to July 2013. They expect the hearing to be concluded by August 2015. Substantial medical evidence has been tendered during the GSB hearing. Once the parties received a ruling on the first phase of the hearing, the parties will determine what action will be taken on the second phase, pertaining to those allegations after July 2013. AMAPCEO submits that it hopeful that the GSB’s ruling will give the parties sufficient direction on any outstanding or ongoing accommodation and compensation issues. If a further phase of hearing is required, the parties have agreed that the matter would return to the same GSB Vice Chair and that any timeliness for filing a new dispute shall be waived.

The Applicant’s Submissions

7The applicant opposes deferral. She submits that there is ongoing reprisal, that the respondent is failing to accommodate her, is not acting in good faith, and that she has been, effectively, constructively dismissed. Further, she submits that there is no certainty that AMAPCEO will continue with her grievances, the GSB is not dealing with all the issues that are alleged in the Second Application, and there is no end in sight for the GSB proceedings. She did not address the respondent and AMAPCEO’s submissions that the GSB ruling will provide direction to any post-July 2013 issues and that the parties have agreed to proceed before the same GSB Vice Chair if a further phase of the hearing is required.

Analysis

8The 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.

9The 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.

10The 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.

11In this case, it is apparent that the grievances which are before the GSB Vice Chair are still active and that the arbitration process has not concluded. The issues that are before the GSB Vice Chair are the subject of the First Application, which has been deferred pending the conclusion of the grievance process, and there is a mechanism in place to address the allegations post July 2013, if the GSB ruling does not provide adequate direction to address them. The parties have agreed that the post July 2013 issues will be heard by the same GSB adjudicator.

12Accordingly, the Second Application is deferred pending the conclusion of the GSB arbitration process. If the applicant believes, on conclusion of the arbitration process, that her human rights issues have not been adequately addressed, she may ask to have her Applications brought back on before the Tribunal.

13Pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules and Forms can be found on its website at www.hrto.ca.

14I am not seized with these matters.