Marin v. Thunder Bay District Social Services Administration Board, 2016 HRTO 949

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paula Marin

Applicant

-and-

Thunder Bay District Social Services Administration Board

Respondent

-and-

Canadian Union of Public Employees, Local 87

Affected Party

INTERIM DECISION

Adjudicator: Alison Renton

Date: July 19, 2016

Citation: 2016 HRTO 949

Indexed as: Marin v. Thunder Bay District Social Services Administration Board

WRITTEN SUBMISSIONS

Paula Marin, Applicant

Self-represented

Thunder Bay District Social Services Administration Board, Respondent

Mary Catherine Chambers, Counsel

Canadian Union of Public Employees, Local 87, Affected party

Sue Lott, Counsel

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application was filed on March 1, 2016 and identifies March 2, 2015 as being the date of the last event.

2In the Application, the applicant identified that she had filed a grievance pertaining to the same issue as that in her Application, and she requested that her Application be deferred. This Interim Decision addresses whether or not the Application should be deferred pending conclusion of the grievance process.

3The applicant is represented in the workplace by a union, Canadian Union of Public Employees, Local 87 (“the union”). The union is not named as a respondent, is not representing the applicant with her Application, and has not filed a Request to Intervene.

4On May 2, 2016, the Tribunal issued a Notice of Intent to Defer and requested that the parties and the union provide submissions about whether or not the Application should be deferred. The union filed submissions, stating that the Application should not be deferred because the grievance is in abeyance and cannot proceed through the grievance process until the applicant returns to the workplace. The respondent filed submissions requesting that the Application be deferred and submitting that the grievance is being held in abeyance because the union has decided not to move it along. The applicant did not file any submissions.

5After reviewing the submissions, the Tribunal issued a Case Assessment Direction dated June 7, 2016 directing that the union file submissions responding to the respondent’s position that the only reason the grievance is being held in abeyance and not proceeding is because the union has decided not to move the grievance along. The Tribunal directed the respondent and the applicant to file submissions after receiving the union’s submissions.

6The union and the respondent filed submissions. The applicant did not and the time for doing so has elapsed.

7The union submits that the Application should not be deferred because the grievance remains in abeyance due to the applicant being out of the workplace for the foreseeable future. It submits that in other interim decisions pertaining to deferral, the Tribunal has not deferred an application where it unclear that the grievance process will proceed in a timely fashion or where the status of the grievance process is uncertain. Further, the union refers to correspondence that the respondent sent to it about another grievance matter where the respondent indicated that it would not be prepared to schedule a grievance meeting until that grievor was back in the workplace. The union attached a copy of that letter, with the name of the grievor, redacted.

8The respondent submits that the Application should be deferred. It submits that the grievance was filed before the Application and it has an agreement with the union to hold the grievance in abeyance until the applicant is well enough to return to work. The purpose of holding the grievance in abeyance is to ensure the applicant is well enough to participate in the grievance procedure, and once the applicant is well enough, then the grievance can proceed. There will be a timely resolution for the applicant if this occurs and there is no indication that the applicant will not participate in the grievance process. The respondent submits that the Tribunal defers most applications where a grievance on the same subject has also been filed. With respect to the letter to which the union referred in its submissions, the respondent submits that this is distinguishable from the facts of this file. In the other case, the respondent requested an extension to respond to the grievance based upon the fact that the grievor was absent from work but expected back in the foreseeable future.

analysis

9The 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.

10The 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 a collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

11The 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.

12In this case, the issues identified in the grievance and the Application are the same. While the union is representing the applicant with respect to her grievance, it is not with respect to her Application. The information the applicant provided on her Application indicates, to me, that she wants her Application deferred while her grievance is outstanding. While the applicant has not filed submissions since filing her Application, in her Application she marked off information about her grievance, provided a copy of it, and agreed that she was asking the Tribunal to defer her Application until the grievance proceeding was completed. The grievance was filed on March 4, 2015, almost a year before her Application was filed. Further, in response to question 20 “Other Important Information the Tribunal Should Know”, the applicant writes that she is aware that she only had until March 2, 2016 to file her application, which suggests that she was filing her Application to preserve her rights. She does not raise concerns about her union’s representation, unlike in some other applications filed with the Tribunal.

13In my view, it is appropriate to defer the Application. I have considered the union’s submissions about concerns about the grievance proceedings proceeding in a timely fashion, and have determined that the Tribunal will defer the Application for six months. At the end of six months, the applicant is directed to provide an update about the status of her grievance. If the applicant believes at the end of the six month period that her human rights issues as raised in the grievance are not being advanced, she may ask to have her Application brought back on before the Tribunal.

14It should be noted that where a party wishes to proceed with an application which has been deferred, the party must file a Request for an Order During Proceedings in accordance with Rules 14.3 and 14.4 of the Tribunal’s Rules within 60 days after the conclusion of the other proceeding.

15I am not seized with this matter.