Searle v. Peterborough Regional Health Centre, 2017 HRTO 1004

Susan Searle Applicant

-and-

Peterborough Regional Health Centre Respondent

INTERIM DECISION

Adjudicator: Josée Bouchard Date: August 4, 2017 Citation: 2017 HRTO 1004 Indexed as: Searle v. Peterborough Regional Health Centre

Susan Searle, Applicant Self-represented

Peterborough Regional Health Centre, Respondent Robert Weir, Counsel

Introduction

1This is an Application filed under section 34 of Part IV 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 a related grievance proceeding.

2The applicant, Susan Searle, is an employee of the respondent, Peterborough Regional Health Centre, in the role of Registered Nurse.

3On or about April 21, 2017, the applicant filed a grievance alleging violations of various sections of the collective agreement with respect to the denial of an Individual Special Circumstance Arrangement (“ISCA”). She alleged in her grievance and subsequent grievance meetings that the respondent failed to recognize her illness as disability, which resulted in the denial of her ISCA.

4On or about May 30, 2017, a Step 2 Grievance meeting was held between the parties. As a follow-up to this meeting, on or about May 31, 2017, the applicant submitted a proposal which would continue her ISCA dated December 12, 2008 until August 31, 2018, in exchange for her retirement by age 60.

5By letter dated June 2, 2017, the respondent confirmed the proposed terms of settlement. By email dated June 12, 2017, the Ontario Nurses Association (“ONA”) and the applicant agreed to the proposed terms of settlement.

6The respondent argues that there is significant overlap between the facts and issues in the Application and the grievance and as such there is the potential for conflicting findings of fact if the Application were to proceed concurrently with the grievance. In addition, the grievance is at a much more advanced stage of the process than the Application. ONA, the applicant and the respondent have agreed to proposed terms of settlement. The respondent submits that the applicant will have her issues and allegations addressed more expeditiously in the grievance process. The respondent requests that the Application be deferred pending the outcome of the grievance process.

7The applicant opposes the request to defer. She submits that the issues of discrimination on the basis of disability and age are not resolved and she expects that a solution is not at hand.

Analysis and Decision

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, it is apparent that the same facts that are the subject of this Application are also the subject of the applicant’s grievance. The grievance and this Application deal with the same series of events regarding alleged discrimination based on the applicant’s disability. It is clear on the face of the grievance filed that the Applicant has grieved the violations of the Collective Agreement denying her an ISCA.

12The matter is still live and the applicant, ONA and respondent are in the process of settling the matter. 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.

13The Application will therefore be deferred pending the completion of the grievance process.

14The 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/.

Order

15The Application is deferred.

16I am not seized of this matter.

Dated at Toronto, this 4th day of August, 2017.

“Signed by”

Josée Bouchard Vice-chair