HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Erin Ariss
Applicant
-and-
St Mary’s General Hospital
Respondent
-and-
Ontario Nurses Association
Affected Party
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Ariss v. St Mary's General Hospital
WRITTEN SUBMISSIONS
Erin Ariss, Applicant
Self-represented
St Mary’s General Hospital, Respondent
Kathryn L. Meehan, Counsel
Ontario Nurses Association, Affected Party
Nicole Butt, Counsel
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”).
2On June 26, 2017 the Tribunal issued a Notice of Intent to Defer this Application pending the conclusion of a grievance proceeding which is ongoing. The respondent does not object to deferral.
3The applicant opposes deferral on the basis that not all of the issues raised in her Application are captured by the grievance. The applicant also asserts that the grievance can be held in abeyance pending the conclusion of this Application or it could proceed.
4The affected party advises that a grievance has been filed and it is currently awaiting the scheduling of a stage 2 grievance meeting.
5The 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.
6However the Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on some or all of 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 (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).
7In any case where the parties are already engaged in a concurrent legal proceeding in which they are raising all or some of the same 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.
8In this case the issues raised in the grievance arbitration appear to be largely identical if not completely co-extensive with the issues in dispute in the Application. The applicant does not claim that there is no overlap between the two proceedings but as indicated above wold prefer to proceed with the Application at this stage. However the grievance remains outstanding and there is no confirmation that the workplace parties have agreed that it be held in abeyance pending the conclusion of this Application.
9In my view it is appropriate to defer this Application in all the circumstances. A grievance has been filed and has not yet concluded. Deferral at this stage avoids the possibility of concurrent legal proceedings addressing the same or similar issue and the greater burden on the parties and public resources of duplicative proceedings.
10The Application will therefore be deferred pending the completion of the grievance process.
11The 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. The other matters raised by the respondent and the affected party will be dealt with by the Tribunal if the Application is brought back on.
12I am not seized of this case.
Dated at Toronto, this 3rd day of 2017.
“Signed by”
David Muir
Vice-chair