Tuesday, September 20, 2011

When will the HRTO refuse to defer an Application?

"The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues."

That sentence has been part of literally hundreds of decisions from the Human Rights Tribunal of Ontario.  Because the Supreme Court (in the Parry Sound decision) found in 2003 that labour arbitrators have parallel jurisdiction to interpret and apply human rights legislation, it is common practice for any bargaining unit member feeling that their human rights have been violated to both grieve the issue and make an application to the HRTO.  This is legitimate.  However, because the HRTO doesn't want to proceed with parallel proceedings, it takes the position that, if there's a grievance moving forward, it will let the grievance go first.

There's a certain logic to this.  Firstly, grievances often include matters above and beyond human rights-based allegations, which the HRTO can't deal with.  So if only one proceeding needs to proceed, it will usually be the grievance.  Secondly, the HRTO is well-positioned to evaluate after the completion of the grievance process whether or not there are outstanding human rights issues that need to be dealt with.  Thirdly, labour arbitrators are privately paid by the parties (i.e. the union and the employer), whereas the HRTO is government-funded with limited resources, so to the extent that it can defer part of its caseload to others, it will.

To applicants, however, there are certain advantages to the HRTO.  Yes, they have the union to assist them in the grievance process, but there are also free legal services available to applicants to the HRTO.  Ultimately, the big difference is that the individual applicant drives an HRTO proceeding, whereas it's the union (taking into account the needs of the grievor but also the rest of the bargaining unit) driving grievance proceedings.

So for a grievor who has grown disillusioned with his or her union representation (which happens fairly frequently), it's a bit of a kick in the face that they are forced to proceed with the grievance before they can move forward with the HRTO application.  And as an added bonus, if the union and the employer reach a settlement of the grievance - even over the objections of the grievor - there is a good chance that the HRTO will conclude that the subject matter of the proceeding has been "appropriately dealt with", and not proceed with the application.  (See Rysinski v. Aecon Industrial.)

It is in this context that I find the recent HRTO decision in Dalrymple v. 412506 Ontario Ltd. interesting.  Ms. Dalrymple worked for St. Jacques Nursing Home, and her claims are apparently as follows:  On June 30th, 2009, she suffered an injury in the workplace, and provided a doctor's note substantiating her absence from work to August 10th, at which point there was a follow-up appointment scheduled.  Due to a family emergency, she was unable to attend that appointment, but ended up getting back to the doctor 3 days later for a note addressing the relevant period.  In the mean time, the employer immediately jumped on her temporarily-unsubstantiated absence and terminated her employment.  After she began a Labour Market Re-entry program under the WSIA, the employer suddenly contacted her (no doubt finally having received better legal advice) to offer her accommodated work, which compromised her position in the Labour Market Re-entry program.

Ms. Dalrymple initiated a grievance in September 2009.  There is no word as to what happened to the grievance since then, except that the union has indicated that it has now decided to refer the grievance to arbitration and the employer has agreed to waive the timeframes for referral of the grievance.  The HRTO decision notes that Ms. Dalrymple "asserts that the union has not represented her very well."  In June 2010, she commenced the HRTO application.

Now, with the grievance potentially moving to arbitration (as well as some related issues that may be going to WSIAT), the employer has asked to defer the HRTO Application.  And those who may have thought that deferral is automatic...have been proven wrong.

[15]           I do not find it appropriate to defer this Application because of the outstanding grievance.  The grievance was filed almost two years ago and the union has recently advised that it has decided to refer the grievance to arbitration.  As of the date of this Interim Decision, the Tribunal has not been advised of any date set for arbitration and has not been provided with documentation showing that the grievance has in fact been referred to arbitration.

[16]           The referral to arbitration is also well after the Tribunal’s process was initiated.  The parties have filed substantive pleadings and a mediation has been held.  At this stage of the Tribunal’s proceedings I do not find it appropriate to defer the Application because of the outstanding grievance.


This blog is not intended to, and does not, provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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