Dickson v. Quinte Healthcare Corporation, 2016 HRTO 750

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Teresa Dickson

Applicant

-and-

Quinte Healthcare Corporation and UNIFOR

Respondents

INTERIM DECISION

Adjudicator: Alison Renton Date: June 1, 2016 Citation: 2016 HRTO 750 Indexed as: Dickson v. Quinte Healthcare Corporation

1This Application alleges discrimination with respect to employment because of disability, sex, and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses whether or not the Application should be deferred pending conclusion of the grievance process.

2In an Interim Decision dated March 11, 2016, the Tribunal addressed issues raised in the applicant’s Request for Order During Proceedings (“RFOP”). One of the issues was to add UNIFOR as a respondent, her bargaining agent in the workplace. UNIFOR did not file a Response to the RFOP. The Tribunal added it as a respondent and directed that it file a Response to the Application.

3UNIFOR filed a RFOP requesting that the Tribunal remove it as a respondent because it did not receive the applicant’s RFOP. The applicant filed a Response to the RFOP objecting to UNIFOR being removed as a respondent and submitting that it sent her RFOP to it. Quinte has not filed a Response to the RFOP and the time for doing so has elapsed.

4Quinte filed a Response to the Application. In it, despite not naming the doctor as an affected party, Quinte notes that the doctor who is mentioned in the Application, is not an employee of it, and submits that the doctor should be added as a respondent. Notwithstanding its RFOP, UNIFOR also filed a Response, submitting that it was on a without prejudice basis to its RFOP, on its behalf and on behalf of UNIFOR Local 8300, the applicant’s bargaining agent.

5The Responses request that the Tribunal defer the Application because the applicant has filed a grievance raising the same allegations as in her Application. Quinte provided a copy of one grievance dated August 25, 2015 in which the applicant alleges that she has not been accommodated. UNIFOR provided copies of eight grievances that have been filed by the applicant, many of which allege a failure to accommodate. UNIFOR also submitted that the Application should be deferred because of a duty of fair representation (“DFR”) complaint filed by the applicant at the Ontario Labour Relations Board (“OLRB”) against it.

6The Tribunal sent the Responses to the applicant and directed that she file a Reply responding to the respondents’ request to defer.

7The applicant filed a Reply. She attached documentation from the OLRB confirming that the DFR is adjourned sine die until January 27, 2017. She did not respond to the issue of the grievances. UNIFOR filed submissions addressing the applicant’s position about the DFR, in particular that it did not consent to its adjournment for the applicant to continue with her Application.

analysis

8The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1 of the Tribunal’s Rules of Procedure). 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.

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 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.

11In this case, there is overlap between the facts and human rights issues covered by the Application and those referred to in the applicant’s grievances as they allege a failure to accommodate, issues about modified work, and issues pertaining to the doctor.

12In my view, it is appropriate to defer the Application pending the completion of the grievance process, which includes the grievance arbitration process. If the applicant believes, on conclusion of that process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

13It should be noted that where a party wishes to proceed with an application which has been deferred, the party must file a RFOP in accordance with Rules 14.3 and 14.4 of the Tribunal’s Rules within 60 days after the conclusion of the other proceeding. UNIFOR’s already filed RFOP, its position that the DFR is a parallel proceeding against it constituting an abuse of process for the Application to proceed against it, and Quinte’s position that the doctor should be a respondent will be addressed if the Application is re-activated.

14I am not seized with this matter.