Buenaventura v. St. Joseph’s Health Centre, 2016 HRTO 993

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gloria Buenaventura

Applicant

-and-

St. Joseph’s Health Centre

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: July 27, 2016

Citation: 2016 HRTO 993

Indexed as: Buenaventura v. St. Joseph’s Health Centre

WRITTEN SUBMISSIONS

Gloria Buenaventura, Applicant

Noel John Hennessy, Counsel

St. Joseph’s Health Centre, Respondent

Brian D. Mulroney, Counsel

1This Application alleges discrimination with respect to employment because of disability and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In the workplace, the applicant is represented by a union, Canadian Union of Public Employees, Local 1144 (“the union”).

2This Interim Decision addresses the respondent’s Request for an Order During Proceedings (“RFOP”) requesting that the Tribunal defer the Application because of the applicant’s outstanding grievances, hearing dates set out in a May 11, 2016 Notice of Hearing, and notice to the union as an affected party.

The Respondent’s Position

3The respondent submits that the Application should be deferred pending completion of the grievance arbitration process. It submits that the applicant has filed three grievances, two before her Application was filed, and one afterwards which are still outstanding. All three grievances have been referred to arbitration, and an arbitrator has been selected, although an arbitration date has not yet been confirmed.

4The three grievances, the respondent submits, all allege a violation of the Code. The grievances that were filed before the Application was filed pertain to discipline that the applicant received. They raise facts and issues which are the same as those raised in the Application. As for the third grievance, pertaining to the applicant’s termination which post-dated the Application, the respondent submits that the applicant’s representative for this Application has written to advise that a second Application pertaining to the termination will likely be filed. A copy of that letter was filed with the Tribunal.

5An arbitrator has the jurisdiction to address violations of the Code. The union has carriage over the grievances and decides what legal issues, and facts, are put before the arbitrator, not the applicant. Given the grievances filed, the arbitrator will hear about the applicant’s disability, restrictions and job duties, and family status issues.

6Furthermore, the respondent submits that it will be substantially prejudiced if the Application proceeds while the grievance arbitration proceeds. It will be required to respond twice in different forums, calling the same witnesses.

The Applicant’s Position

7The applicant filed a Response to the RFOP, although most of it addressed the merits of the grievance. The applicant opposes the respondent’s request.

8The applicant submits that the grievances are in violation of the “Union’s” article 13, apparently as there is a violation of the time limits, should not be allowed to move forward, and should be dismissed.

9The applicant also submits that she is not raising the Code issues in all her grievances, and she has not requested the union to act on her behalf with any of her human rights issues. She requests the union “…to remove all the claimed issues in the grievances as these issues will go the Application and there will be no overlap”.

Analysis

10The 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.

11The 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).

12The 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.

13In this case, there are similar issues and facts in the first two grievances and the Application. The third grievance is about the applicant’s termination, which post-dates the Application. At this point, the third grievance is not relevant to the Application, although I do see that the applicant’s representative has written to advise that a second application will likely be filed pertaining to the termination. The grievances have all been referred to arbitration, and an arbitrator selected, although an arbitration date has not yet been confirmed.

14Section 45(1) of the Labour Relations Act, 1995 provides that a union is the exclusive bargaining agent for members of the relevant bargaining. The union decides whether or not a grievance can be filed for its members, and what information or issues are raised in the grievances. While the applicant submits that she now does not want the union to raise Code issues in her grievances, they are, at this point, identified on the grievance forms themselves, and there is no information filed to confirm that the applicant has asked this from her union and that the union agrees with this approach. Accordingly, at this point there is an overlap in issues between some of the grievances and the Application.

15In my view, it is appropriate to defer the Application pending conclusion of the grievance arbitration process.

16It 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.

Next Steps

17The Tribunal sent the parties a Notice of Hearing dated May 11, 2016 scheduling the file for hearing on September 22 and 23, 2016. While the respondent notified the Tribunal that it was not available on those dates, and this notification was timely, it appears that the Tribunal has not addressed the respondent’s request to reschedule.

18Given that the Application is deferred pending conclusion of the grievance arbitration process, the September 22 and 23, 2016 hearing dates are cancelled. If the Application is re-activated, then new hearing dates will be scheduled by the Tribunal.

19It also appears that despite the applicant providing information about the union in her Application, the union has not previously been identified as an affected party. The Tribunal will send a copy of this Interim Decision and the pleadings to the union. If the union seeks to intervene, it is directed to file a Form 28 – Notice of Intervention by Bargaining Agent by Friday, August 19, 2016. The parties are directed to the Tribunal’s Practice Direction on Intervention by a Bargaining Agent, and Rules 11.14 and 11.15 of the Tribunal’s Rules of Procedure if they object to such intervention.

20I am not seized with this matter.