Overy v. Bluewater Health, 2017 HRTO 1058

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kara Overy Applicant

-and-

Bluewater Health Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: August 15, 2017 Citation: 2017 HRTO 1058 Indexed as: Overy v. Bluewater Health

WRITTEN SUBMISSIONS

Kara Overy, Applicant Self-represented

Bluewater Health, Respondent David Foster, Counsel

1This Interim Decision addresses whether the Tribunal should defer consideration of the Application pending the conclusion of the grievance arbitration proceeding in this case. It also addresses the applicant’s filing of numerous requests to amend the Application and her filing of confidential information.

2The applicant filed an Application alleging discrimination because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Specifically, the applicant alleged that the respondent’s policy for the provision of medical documentation is discriminatory. She also alleged that management’s treatment of her during the grievance process was discriminatory.

3In addition to filing this Application, the applicant filed at least two grievances with her union. The parties held a mediation into the grievances. When the mediation was unsuccessful, the applicant's union referred one of the grievances to arbitration.

4The respondent has requested that the Tribunal defer consideration of the Application pending the conclusion of the grievance arbitration proceeding.

5The applicant opposed deferral on the basis that she does not have confidence in her union and that her Application deals with issues that are not covered by the grievances.

Deferral

6The 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 generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. The reason for this is that grievance arbitrators have, not only the power, but also the responsibility to enforce human rights and other employment-related statutes as if they were part of a collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

7In this case, I find it appropriate for the Tribunal to defer consideration of the Application pending the conclusion of the grievance arbitration proceeding in this matter for two reasons. First, there is substantial overlap between the Application and the grievance. The main issue raised in the Application relates to the respondent’s medical documentation policy. That is also the issue that is at the center of the grievance. In my view, there is substantial risk of inconsistent findings of fact and/or law if the Application and the grievance were to proceed together.

8The second reason why deferral is appropriate is that it is not clear that the applicant’s allegations regarding the medical documentation policy and her treatment by the respondent are linked to her disability. That is, although the policy itself relates to disability, it is not clear that the applicant is alleging that the respondent has treated her differently because of her disability in the application of its policy. In addition, while the applicant is unsatisfied with the way the respondent has treated her, it is not clear that there is any evidence to establish that the any mistreatment was carried out because of her disability.

9For both of these reasons, I find that deferral is appropriate in this case.

10If the applicant believes that the grievance arbitration proceeding did not appropriately deal with the substance of his Application, she may seek to re-activate his deferred Application. However, the applicant should take note that, under s. 45.1 of the Code, the Tribunal has the power to dismiss Applications if the substance of an Application has been appropriately dealt with in another proceeding.

11Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure address how an application may be brought back before the Tribunal following conclusion of another proceeding. It should be noted that, a party wishing to proceed with an application must file a Request for Order During Proceedings (Form 10) no later than 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/.

applicant’s request to amend her application

12The applicant has filed numerous Requests for Orders During Proceedings (“RFOPs”) seeking to amend her Application in this case. The applicant seems to have misunderstood the RFOP process. The applicant seems to think that she must file a request to amend her Application whenever she has any communication with her union or the respondent through her union. That is not the case. An Application contains allegations of discrimination. The applicant should only file an RFOP if she is seeking to add allegations of discrimination to her Application. It is not necessary for the applicant to keep the Tribunal apprised of all of her communications with her union or the respondent. In addition, the Tribunal has a disclosure process for materials set out in Rules 16 and 17 of its Rules of Procedure. Therefore, it is not necessary for parties to file materials with the Tribunal before the deadlines set out in these Rules.

privileged documents

13Any correspondence that relates to settlement discussions between parties is usually considered confidential. Therefore, the applicant should not be filing with the Tribunal copies of any correspondence setting out settlement offers being exchanged by her union or the respondent in this case.

order

14For the above reasons, the Tribunal defers consideration of this Application pending the conclusion of the grievance arbitration proceeding in this case.