Suzanne Vivarais-Brewster v. Ottawa Carleton Association for Persons with Developmental Disabilities, 2015 HRTO 479

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Suzanne Vivarais-Brewster

Applicant

-and-

Ottawa Carleton Association for Persons with Developmental Disabilities,

Jean Martel, Richard Leblanc and David Ferguson

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: April 15, 2015

Citation: 2015 HRTO 479

Indexed as: Vivarais-Brewster v. Ottawa Carleton Association for Persons with Developmental Disabilities

WRITTEN SUBMISSIONS

Suzanne Vivarais-Brewster, Applicant

Self-represented

Ottawa Carleton Association for Persons with Developmental Disabilities, Jean Martel, Richard Leblanc, and David Ferguson, Respondents

Leanne Fisher, Counsel

1This Interim Decision addresses the applicant’s second request to reactivate this Application.

2In her Application, the applicant alleged that she was harassed and that her employment was terminated for discriminatory reasons contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant also filed a grievance with her union alleging that she was terminated without just cause.

3The applicant’s union referred the grievance to arbitration. The union and respondent agreed to place the grievance in abeyance pending the outcome of a criminal investigation relating to the applicant’s employment. By Registrar’s Letter dated April 18, 2014, the Tribunal deferred this Application pending the outcome of the grievance filed on behalf of the applicant by her union.

4In September, 2014, the applicant filed a Request to reactivate her Application prior to the arbitration because the criminal proceeding was closed and no charges were laid. By Interim Decision, 2014 HRTO 1552, I denied her Request and found that the grievance should remain deferred pending the completion of the grievance process.

5The applicant filed a second Request seeking to reactivate her Application. In the Request, she notes that the first arbitration date is scheduled for July 2015. However, she seeks to reactivate her Application because additional hearing dates have not yet been set and she is concerned that the hearing will run into 2016.

6The respondents oppose the applicant’s Request. They submit that there has been no undue delay in regards to the applicant’s grievance. The corporate respondent and the applicant’s union agreed to put the grievance in abeyance pending the outcome of the criminal investigation. The parties have been in discussions as to a possible resolution of the matter. As a result, the corporate respondent and the applicant’s union agreed that continuation dates for the arbitration would not be set until the parties are able to determine whether the grievance can be resolved without the need for a hearing on the merits.

7Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. 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 a part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. Therefore, absent exceptional circumstances, the Tribunal will generally defer an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

8In my view, proceeding with this Application could lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievance. As a result, I find it is not appropriate to reactivate this Application at this time.

9The parties should take note of Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline the process by which an Application may be reactivated at the conclusion of the arbitration process. As set out in those Rules, any party seeking to reactivate the Application must do so no more than 60 days after the issuance of an arbitral decision or any other form of conclusion of the arbitral proceeding.

ORDER

10The Tribunal orders that the Application remain deferred pending the issuance of an arbitral decision or any other form of conclusion of the arbitral proceeding.