Hawco v. Peel Express, 2009 HRTO 1342

Editor’s Note: Corrigendum released September 9, 2009. Original judgment has been corrected accordingly.

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mario Hawco

Applicant

-and-

Peel Express, Division of Armbro Transport Inc. Peter Di Tecco, Hugh Tharby and Dave Whynot

Respondent

-and-

Teamsters Local Union 938

Intervenor

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: August 27, 2009

Citation: 2009 HRTO 1342

Indexed as: Hawco v. Peel Express

1This is an Application filed on June 15, 2009 under Section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The purpose of this Interim Decision is to address the respondent’s request for early dismissal and the union’s request to intervene.

BACKGROUND

2The Application arises out of the applicant’s employment as a truck driver with the respondent. The applicant alleges that he was discriminated against on the basis of disability in employment following a workplace injury on March 15, 2007. Among other things, the applicant alleges that the respondent failed to properly accommodate him and harassed him on the basis of disability. The particulars in the Application span several years from the date of the applicant’s injury to December 19, 2008 when the applicant returned to his pre-injury job.

3The applicant states that the facts of the Application were part of a union grievance filed by his union, Teamsters Local Union 938, that is now completed. A copy of the grievance dated December 22, 2008 is attached to the Application. The grievance refers to a member of the management of the respondent “bullying” the applicant into working overtime shortly after he returned to work on December 19, 2008 contrary to “our collective agreement, the Occupational Health and Safety [A]ct and Ontario Human Rights”.

4The respondent has not filed a full Response and requests early dismissal on the basis that the applicant has signed a full and final release. Based on a review of the supporting material, it appears that the applicant’s grievance was “resolved” with the assistance of an arbitrator at the same time as two other individual grievances of different employees and a separate policy grievance of the union. The Minutes of Settlement were not signed by the applicant and notably the respondent states that the applicant was not in agreement with the outcome, although the respondent also suggests that by allowing his grievance to be held in abeyance he implicitly agreed that this was an acceptable venue for resolution. The respondent states that the matter has been appropriately dealt with and therefore the Application should be dismissed.

5The applicant has replied to the early dismissal claim by considering the respondent’s request as an objection under section 45.1. The applicant states that the respondent has failed to provide sufficient information and evidence germane to the request. Further, the applicant objects to the application of section 45.1 to the Application on the basis that, while “grievances” were filed, the respondent refused to deal with the human rights issues.

6The union has filed a Request to Intervene in any mediation or hearing for the purpose of addressing any procedural or remedial issues that may affect the operation of the collective agreement or the rights of union members under the collective agreement. In explaining its interest and expertise, the union states that it has processed a number of grievances on behalf of the applicant in 2007 and 2008 but none have alleged a failure to accommodate disability. With respect to the specific request for early dismissal, the union states that the settlement of the “aggressive behaviour” policy grievance and of the applicant’s grievance related to the December 19, 2008 incident are in no way a settlement of the issues in the Application such as accommodation issues, issues related to the release of medical information and denial of vacation time.

7Both parties have expressed an interest in mediation.

REQUEST FOR EARLY DISMISSAL

8The respondent’s request for early dismissal without a full Response is denied. This request is premised on the applicant having signed a full and final release, which is not present in this case.

9While the respondent also states in its submissions that the matter has been “appropriately dealt with” thus raising the question of whether section 45.1 applies, to the extent the section applies, it is only determined after a full Response is provided. The respondent is therefore directed to file a full Response to the Tribunal no later than 35 days after the date of this Interim Decision.

10However, I note that the parties have indicated that they are agreeable to mediation. Accordingly, the Registrar is asked to schedule the Application for mediation once the Response has been filed. To the extent the respondent takes the position that section 45.1 applies, it will be dealt with, if necessary, following mediation.

REQUEST TO INTERVENE

11It is apparent that the union has an interest in the resolution of this Application. The union has specifically sought the right to participate in any mediation in furtherance of its role within the accommodation process and to ensure that any settlement of the issues in dispute is in accordance with the collective agreement and considers the rights of the union’s other members. The union specifically requests a right to file further submissions and to set out any additional facts upon which it relies following any Response that may be filed.

12Neither of the parties has filed any Response objecting to the union’s Request.

13Having regard to all of the circumstances in this Application including the absence of any objection by the parties, I grant the union’s Request to intervene. The extent and nature of the union’s participation at the mediation and any subsequent hearing that may be scheduled will be determined by the Vice-chair assigned to mediate or hear the Application as the case may be.

14The union is directed to file any further submissions it may have to the Response within 14 days after the Response is delivered to it.

15I am not seized.