Schofield v. Peterborough County-City Health Unit, 2016 HRTO 400

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cathy Schofield

Applicant

-and-

Peterborough County-City Health Unit

Respondents

-and-

Canadian Union of Public Employees, Local 4170

Affected Party

INTERIM DECISION

Adjudicator: David Muir

Date: March 31, 2016

Citation: 2016 HRTO 400

Indexed as: Schofield v. Peterborough County-City Health Unit

WRITTEN SUBMISSIONS

Cathy Schofield, Applicant

Hugh Scher, Counsel

Peterborough County-City Health Unit , Respondent

Paula M. Rusak, Counsel

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"),.

2In her Application the applicant advised the Tribunal that two grievances had been filed on her behalf related to the issues in dispute in this Application.

3Accordingly the Tribunal issued a Notice of Intend to Defer (NOID) the Application pending the conclusion of these other legal proceedings. Due to administrative error the Tribunal issued correspondence deferring the Application without objection on March 29, 2016.

4The respondent supports deferral.

5The applicant opposes deferral.

6The affected party takes no position on the NOID.

7The 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.

8However the Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on some or all of the same facts and 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).

9In any case where the parties are already engaged in a concurrent legal proceeding in which they are raising all or some of the same 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.

10In this case there appears to be significant overlap in the issues raised in the two proceedings. The applicant does not claim that there is no overlap between the two proceedings but argues that not all of the issues raised in the grievances will be addressed in the grievances. While this appears to be the case the fact is that the grievances do appear to deal with the most significant issues raised in this Application in particular the applicant's dismissal from employment. The applicant argues that there is only a slight chance of inconsistent findings of fact in the two cases. It is not clear how that can possibly be the case given that these proceedings, although framed in different ways, all deal with the more significant of the issues raised by the applicant in the application being inappropriate discipline and her dismissal from employment.

11As regards the argument that the applicant has limited or no control over the grievance process and the approach the affected party may take, this is not a relevant consideration. There are significant advantages for an applicant in having their bargaining agent represent them in a grievance. However it is true that the applicant may have limited control over the process. At the end of the day the applicant caused the grievances to be filed. The fact that she may have less control over the conduct of those proceedings than she will have over the Application should it be reactivated is not a reason to allow two largely similar cases to proceed concurrently.

12The applicant also argues that the remedies sought in the two proceedings are not the same. On the same basis that a difference in remedies sought or available in another proceeding do not affect the analysis under sections 45(1) or (34(11) of the Code, the fact that the remedies sought in a grievance are different than those available or sought before the Tribunal is not a particularly important consideration in determining whether to allow concurrent proceedings.

13Accordingly it is appropriate in my view to defer this Application.

14The Application will therefore be deferred pending the completion of the grievance process. The other issues raised by the parties may be addressed in the event that the Application is reactivated.

15The 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. The other matters raised by the respondent and the affected party will be dealt with by the Tribunal if the Application is brought back on.

16I am not seized of this case. .