Da Silva v. The University Health Network, 2016 HRTO 1179

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maria Lucia Da Silva

Applicant

-and-

The University Health Network

Respondent

-and-

CUPE Local 5001

Intervenor

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: September 7, 2016

Citation: 2016 HRTO 1179

Indexed as: Da Silva v. The University Health Network

INTRODUCTION

1The applicant has filed an Application alleging discrimination in employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On June 7, 2016, the Tribunal issued a Notice of Intent to Defer on the basis that a grievance has been filed that appeared to address the same incidents as those alleged in the Application. The Tribunal sought submissions from the parties on the issue of deferral. Submissions were to be provided no later than July 7, 2016.

3To date, neither of the parties have provided submissions on the issue of the deferral of the Application.

Decision

4The 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). The Tribunal must consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application. In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following comments about deferral at paras. 18-19:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

5In this case the facts and issues to be determined in the grievance arbitration appear to be the same as the allegations in the Application. The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues, see Mattingly v. Ontario (Community Safety and Correctional Services), 2015 HRTO 21.

6Applying the principles considered by the Tribunal in similar applications, I find it is appropriate to defer this Application pending the conclusion of the grievance proceeding. It would not be constructive to have two proceedings consider concurrently the same facts as this may lead to contrary findings. The grievance arbitration is scheduled to conclude within the next four months. Therefore, it is most fair, just and expeditious to defer this Application.

7Accordingly, the Application is deferred pending the conclusion of the grievance proceeding. The Tribunal directs the parties’ attention to Rule 14 of the Tribunal’s Rules of Procedure which sets out the procedure if a party wishes to proceed with an application that has been deferred.

8I am not seized.