Barlin Ahmed v. Extendicare West End Villa, 2015 HRTO 524

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barlin Ahmed

Applicant

-and-

Extendicare West End Villa

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: April 23, 2015

Citation: 2015 HRTO 524

Indexed as: Ahmed v. Extendicare West End Villa

WRITTEN SUBMISSIONS

Barlin Ahmed, Applicant

Self-represented

Extendicare West End Villa, Respondent

John J. Bruce, Counsel

Introduction

1The purpose of this Interim Decision is to determine whether this Application should be deferred pending the resolution of the grievance filed on behalf of the applicant.

2The applicant alleges that the respondent discriminated against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) when it harassed her and terminated her employment. In particular, the applicant alleges that the employer discriminated against her because of disability and failed to provide reasonable accommodations for her work-related injury.

3In addition to filing her Application, the applicant filed a grievance with her union. In the grievance, she alleges that the respondent violated the collective agreement and the Code by failing to accommodate her disability. Her grievance was referred to arbitration and the arbitration is ongoing. The first hearing date was July 8, 2014 and four more dates are scheduled for June and December 2015.

4In its Response to the Application, the respondent requested, among other things, a deferral pending the outcome of the grievance process.

5In her Reply, the applicant stated that she filed her Application because the grievance process was taking too long and causing her financial difficulties

decision

6The Tribunal may defer consideration of an Application on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1 of the Tribunal’s Rules of Procedure). Deferral 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, the Tribunal will generally defer an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

7The main issues raised in the Application and the applicant’s grievance are the same. The grievance process is ongoing. Therefore, proceeding with the Application could lead to inconsistent decisions on the facts and/or legal issues raised in the Application and grievance. As a result, it is appropriate to defer this Application pending the completion of the grievance process in this matter.

8The parties’ attention is drawn to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance proceedings. It should be noted that, a party wishing to proceed with an Application must file a request to proceed no later than 60 days after the conclusion of the other proceeding.

9I am not seized of this matter.