Abdosh v. North York General Hospital, 2016 HRTO 1466

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nuria Abdosh Applicant

-and-

North York General Hospital Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: November 16, 2016 Citation: 2016 HRTO 1466 Indexed as: Abdosh v. North York General Hospital

WRITTEN SUBMISSIONS

Nuria Abdosh, Applicant Self-represented

North York General Hospital, Respondent H.P. Rolph, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of 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 does not indicate in the Application that the facts of the Application are part of a union grievance proceeding that is still in progress. However, the respondent raises the issue in its Response, and encloses a copy of the grievance filed on the applicant’s behalf by the applicant’s union, Ontario Nurses Association (the “union”).

3The respondent raises the deferral issue and the issue of whether portions of the Application should be dismissed both because of an arbitration decision dated January 11, 2016 and an August 10, 2016 Tribunal Decision, 2016 HRTO 1063 that dismissed a prior Human Rights Application (2013-16405-l) between the same parties. This Interim Decision deals only with the deferral issue.

4The respondent submits the Application should be deferred because the applicant filed a grievance, 2015-34, on December 30, 2015 with respect to her termination. The grievance has been referred to arbitration by the union, and by agreement of the respondent and the union, arbitrator Peter Barton was appointed to hear the grievance. On May 6, 2016 he conducted an unsuccessful mediation before commencing a formal hearing. Therefore, it is the respondent’s position that the Application should be deferred pending completion of the arbitration of the termination grievance.

5The applicant submits the Application should not be deferred. She provided written submissions on November 7, 2016. The applicant agrees that a whole day meeting took place with the arbitrator on May 6, 2016. She also indicates that the matter did not settle. The applicant also submits the union has communicated with her since that time in what she describes as a discouraging way. The applicant expresses disappointment in the union’s response and actions, opining that the union is not fully supporting her. The applicant provides no particular reasons why the Application should not be deferred.

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 is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance, particularly since the applicant has grieved her termination, and also alleges in this Application that her termination was discriminatory. I am satisfied that the concerns the applicant raises about the Union’s position on the applicant’s grievance do not justify a departure from the Tribunal’s normal approach. The matter is still live and the grievance process has not concluded. An arbitrator is already involved in the matter. If the applicant believes, on conclusion of the process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

10In addition, the additional issues raised by the respondent will be addressed if and when the Application is reactivated.

11The Application will be deferred pending the completion of the grievance process.

12The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. 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 of Procedure and Forms can be found on its website at www.sjto.gov.on.ca/hrto/.