HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bohdan Czornodolsky
Applicant
-and-
Bombardier Inc. o/a Bombardier Aerospace
Respondent
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: Czornodolsky v. Bombardier
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on May 25, 2009, in which he alleges discrimination in the context of employment on the basis of disability. The respondent filed a Response on July 30, 2009.
2The purpose of this Interim Decision is to address the following preliminary issues:
a. the applicant’s request to amend the Application; and
b. the respondent’s request that the Application be deferred pending the grievance arbitration.
REQUEST TO AMEND
3On August 20, 2009, the applicant filed a Request for Order during Proceedings (“Request”) seeking to amend his Application to include:
a. further particulars; and
b. reprisal or threat of reprisal as a ground of discrimination.
4The respondent has consented to the applicant’s request, provided it is given reasonable time to respond to the new allegations.
5In the circumstances and given that the respondent consents to the amendments, the Request is allowed. Within 21 days of this Interim Decision, the respondent may file an amended Response.
REQUEST TO DEFER
6The respondent filed a Response on July 30, 2009, in which it disputes the allegations contained in the Application and asks the Tribunal to defer dealing with the Application pending a grievance arbitration. The respondent contends that all of the facts and issues raised in the Application will be considered in a grievance arbitration, which it says was to occur in mid-August of 2009.
7The applicant filed a Reply on August 20, 2009, in which he provided submissions regarding the deferral issue. It appears from the applicant’s submissions that the grievance hearing had not taken place by August 20, 2009.
8The applicant contends that the question raised in the grievance is whether the applicant’s employment was terminated with just cause. He argues that issues of harassment and accommodation of a disability are raised in the Application and will not be addressed at the grievance arbitration.
9The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.
10Pursuant to Rule 14.2, where the Tribunal intends to defer consideration of an application, it will first give the parties, any identified trade union or occupational or professional organization and any identified affected persons, an opportunity to make submissions.
11Within two weeks of the date of this Interim Decision, the Canadian Auto Workers, Local 112 (“Union”) may make written submissions regarding whether the Tribunal should defer consideration of this Application until such time as the grievance is resolved. In these submissions, the Union should address the status of the grievance proceeding, the date it is scheduled to be heard, and whether the grievance is based on the same facts and issues as the Application.
12The Registrar will deliver a copy of the Application, the Response and this Interim Decision to the Union.
13I am not seized of this matter.
Dated at Toronto, this 18^th^ day of September, 2009.
“Signed by”
Michelle Flaherty
Vice-chair