D’Alimonte v. Humber River Hospital, 2015 HRTO 44

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lidia D’Alimonte Applicant

-and-

Humber River Hospital Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: January 13, 2015 Citation: 2015 HRTO 44 Indexed as: D’Alimonte v. Humber River Hospital

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”). 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 were part of a union grievance in 2012 with alleged discrimination and failure to accommodate since then.

3The respondent attached to its Response two grievances, one dated March 14, 2014 and the other dated April 1, 2014, and requests that the Tribunal defer the Application as the grievances are scheduled for arbitration on January 30, 2015.

4The applicant opposes deferral. She submits that the March and April 2014 grievances pertain to collective agreement violations, and that the arbitrator does not have the jurisdiction to deal with her 2012 grievance.

5The Service Employees International Union Local 1 (“the union”) which represents the applicant in the workplace has not filed a Request to Intervene or filed submissions with respect to the respondent’s deferral request.

ANALYSIS

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. 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.

7The 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).

8The 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.

9In this case, it is apparent that there appears to be overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. The 2014 grievances specifically allege failure to accommodate and one cites the Code. The matter is still live and the grievance process has not concluded. The arbitration of the 2014 grievances is scheduled for January 30, 2015. 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 Application brought back on before the Tribunal.

10The Application will therefore be deferred pending the completion of the arbitration process. A copy of this Interim Decision will also be sent to the union.

11Pursuant 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.

12I am not seized with this matter.