Denise Goodale v. Hamilton Health Sciences and Angela Djurjovic, 2016 HRTO 874

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Denise Goodale

Applicant

-and-

Hamilton Health Sciences and Angela Djurjovic

Respondents

INTERIM DECISION

Adjudicator: Jennifer Khurana

Date: June 30, 2016

Citation: 2016 HRTO 874

Indexed as: Goodale v. Hamilton Health Sciences

WRITTEN SUBMISSIONS

Denise Goodale, Applicant

Self-represented

Hamilton Health Sciences and Angela Djorjovic, Respondents

Robert Little, Counsel

Ontario Nurses’ Association, Local 70, Affected Party

Pamela Sheptenko, Representative

1This is an Application filed under section 34 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 related grievance proceedings.

2The facts of the Application are part of two union grievances that are still in progress. The applicant attached copies of the grievances filed by the Ontario Nurses’ Association (the “Union”) on her behalf.

3On May 18, 2016, the Tribunal issued a Notice of Intent to Defer the Application (“NOID”) pending the resolution of grievance proceedings dealing with the subject matter of the Application. The applicant was directed to respond to the issues raised in the NOID by no later than June 17, 2016. The applicant did not respond to the NOID. She did not request a deferral in the Application and submits that the Union appears powerless. The respondents submit that the Application should be deferred on the grounds that the grievances raise the same facts and issues and that they have been referred to arbitration.

4The 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.

5The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on 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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

6The 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 facts and 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.

7In this case, it is apparent that there is substantial overlap between the facts and issues covered by the Application and those referred to in the grievances. Both the Application and the grievances allege discrimination under the Code, an improper notice of layoff, and a failure to accommodate the applicant’s workplace restrictions. I am satisfied that the concerns the applicant raises about the Union do not justify a departure from the Tribunal’s normal approach. The matter is still live and the grievance process has not concluded. The applicant’s grievances have already been referred to arbitration and are scheduled to be heard on July 14, 2016. However, 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.

8The Application will therefore be deferred pending the completion of the grievance process.

9The 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/.