Guibord v. Almonte General Hospital, 2016 HRTO 610

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Guibord

Applicant

-and-

Almonte General Hospital

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: May 6, 2016

Citation: 2016 HRTO 610

Indexed as: Guibord v. Almonte General Hospital

WRITTEN SUBMISSIONS

Jennifer Guibord, Applicant

Self Represented

Almonte General Hospital, Respondent

Vicky Satta and Sarah Lapointe, Counsel

Introduction

1This is an Application filed on February 1, 2016 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging reprisal and discrimination in employment on the basis of sex. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of what the respondent alleges is a related grievance proceeding.

2The Tribunal advised the applicant in its March 29, 2016 letter which enclosed the Response that the respondent had requested that this Application be deferred. The Tribunal sought submissions from the applicant about whether it would be appropriate to defer the consideration of the Application pending the resolution of a related grievance. The Tribunal directed the applicant to file submissions addressing this issue, which she did.

3The respondent’s request for deferral points to a March 5, 2015 grievance filed by the applicant that the respondent submits deals with the calculation of the applicant’s seniority hours, and includes all the issues raised in this Application.

4The respondent points out that the respondent and the applicant already have resolved several grievances that deal with a number of the issues raised in the Application, and that there is no reason to believe that the grievance and arbitration process will not be sufficient to deal with the outstanding issues.

5The respondent submits that the same facts and issues have been raised in the Application as in the grievance. In addition, it would be an inefficient and inappropriate use of the Tribunal’s resources to proceed with the Application in the face of the ongoing related grievance.

6The applicant responds that the outstanding grievance does not include the issue raised in this Application, namely the seniority accrual during her pregnancy-related absence in the fall of 2013. The applicant submits that while this was part of her grievance initially, this part of the grievance was dropped after a vote by the local union membership. As such, there is no grievance that deals with this human rights complaint.

7The applicant submits further that as a result of discussions that ensued between the respondent and the union following the filing of the March 5, 2015 grievance, other errors were discovered in the calculation of the applicant’s seniority, which the applicant contends will continue to be discussed as part of the grievance resolution process.

ANALYSIS

8The Tribunal may defer consideration of an application on such terms as it may determine, on its own initiative or at the request of a party (Rule 14.1). 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 Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider whether deferral is the most fair, just and expeditious way of proceeding with the application.

9The 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).

10The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are 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.

11As stated in Melville v. Toronto (City) 2012 HRTO 22:

Deferral avoids two simultaneous proceedings that may result in conflicting determinations, ensures that the respondent need not be actively defending the same matter in two legal proceedings at the same time, and focuses the Tribunal’s limited resources on cases where it is the only process being pursued. In my view, it is consistent with the Tribunal’s mandate to interpret its rules in a fair, just and expeditious manner to defer a case when a grievance is ongoing, whether or not that grievance has yet been referred to arbitration. The grievance process is a stage in dispute resolution before the matter is referred to an independent third party, but that does not mean that there is no proceeding ongoing. Fairness supports avoiding the duplication of proceedings.

12In this case, it appears that there may be substantial overlap between the facts and human rights issues covered by the Application and those referred to in the ongoing grievance. The Tribunal acknowledges the applicant’s point that the Application raises an issue that is not included in the grievance because the union membership voted not to proceed with that issue. However, the Application does address the calculation of seniority, and the applicant acknowledges that the respondent and the union continue to discuss potential errors in the calculation of the applicant’s seniority. As such, there is the potential in this case for there to be conflicting findings of fact if the Application were to proceed concurrently with the grievance. As such, the appropriate course of action is to defer this Application while the grievance process continues.

13If the applicant believes, on conclusion of the grievance and arbitration processes, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal (“reactivation”).

14The Application will be deferred pending the completion of the arbitration processes.

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 arbitration process.