Niescior v. Essex (County), 2009 HRTO 2013

Human Rights Tribunal of Ontario

Between: Edmund Niescior, Applicant -and- Corporation of the County of Essex (Essex-Windsor Emergency Medical Services) and Sun Parlour Emergency Services Incorporated, Respondents -and- Canadian Union of Public Employees and its Local 2974.1, Intervener

Interim Decision

Adjudicator: Naomi Overend Date: November 24, 2009 Citation: 2009 HRTO 2013 Indexed as: Niescior v. Essex (County)

1This Interim Decision deals with the following interim issues: (1) A Request to Intervene filed by Canadian Union of Public Employees and its Local 2974.1 (collectively "CUPE"); (2) a request for early dismissal of the Application under s. 45.1 based on an arbitral decision which the respondents state has appropriately dealt with the substance of the Application; and (3) the applicant's request to amend his Application.

2The applicant appears to have been separately employed by the two respondents as a paramedic. As a result of an incident occurring in April 2008, he was required to recertify in order to carry out the entire spectrum of paramedic activities. This requirement to recertify affected his employment with both respondents, and in July 2008, when he failed to recertify, his employment with both respondents was terminated.

3The applicant was a member of two separate bargaining units – CUPE and the Service Employees International Union, Local 1 ("SEIU"). He grieved both dismissals, but CUPE did not take his grievance to arbitration. On January 15, 2009, the SEIU grievance contesting his dismissal from Sun Parlour Emergency Services Incorporated ("Sun Parlour EMS") went to arbitration. The arbitrator, Laura Trachuk, dismissed the applicant's grievance in an award dated May 19, 2009.

4In the meantime, the applicant filed this Application on February 19, 2009, under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment on the basis of disability. The applicant alleges that as a result of a pre-existing disability that was made worse by the requirement to recertify, he was unable to pass the recertification test within the requisite time period and, accordingly, his dismissal for failure to recertify was discriminatory.

REQUEST TO INTERVENE

5CUPE sought to intervene pursuant to Rule 11 of the Tribunal's Rules of Procedure in order to address the issue of reinstatement sought by the applicant, as well as to address any issue that might touch upon the "administration, application and interpretation" of the collective agreement.

6In this case, the Application appears to raise issues that may affect CUPE. The Request to Intervene is therefore granted. The extent of CUPE's participation in any future proceedings will be determined by the Vice-chair who presides over those proceedings.

7At the time that CUPE filed its request to intervene, the respondents had not yet made their respective requests for early dismissal. CUPE may have a position on this issue, and will be permitted to make oral submissions in accordance with the direction below.

REQUEST FOR EARLY DISMISSAL AND REQUEST TO AMEND

8Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

9Counsel for both respondents asked that the Applications be dismissed under this section. Sun Parlour EMS noted that the arbitration decision specifically addressed the issue raised in this Application – namely, whether the requirement to recertify within a certain period of time was discrimination on the basis of disability. In dismissing the grievance, the arbitrator specifically determined that it was not discriminatory.

10Although the applicant was unable to proceed to arbitration with the grievance regarding his termination from Essex-Windsor Emergency Medical Services ("Essex-Windsor EMS"), the Response filed on behalf of this respondent notes that issues between the parties (notably the human rights issues) were identical to those raised in the grievance of the Sun Parlour EMS termination. Hence, it argues, the arbitral decision has appropriately dealt with the substance of the allegations in the Application against the Essex-Windsor EMS as well as the (identical) allegations against Sun Parlour EMS.

11In his Reply, the applicant opposes the request to dismiss. He asserts that the Application did not arise from the same facts as the grievance, that different issues are being raised in this proceeding than in the grievance and that, in any event, the matter was not "appropriately dealt with" in the arbitration.

12With respect to the argument that different issues are being raised in the Application, the applicant alleges that he has a learning disability that was not raised in the arbitration proceedings. The Application does not currently allege any facts relating to this learning disability, but the applicant now seeks to amend his Application to reflect an allegation that the respondents "failed to accommodate his learning disability as it related to formalized testing." The applicant asks the Tribunal to exercise its discretion to amend under Rule 1.7.

13Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties a chance to make oral submissions. Accordingly, the Registrar shall schedule a one-day hearing to consider whether the Application should be dismissed under s. 45.1.

14This hearing will proceed by way of teleconference unless the parties advise that an in-person hearing is required. The parties should make any request for an in-person hearing to the Tribunal by December 4, 2009.

15Although the applicant's request to amend could be dealt with by way of written submissions, it is appropriate to deal with this request at the same time as the Tribunal hears submissions on the application of section 45.1.

16If any party intends to call any witnesses or rely upon documents not included in the Tribunal's file, it shall deliver such materials to the other parties and file them with the Tribunal no later than 14 days before the scheduled hearing.

17I am not seized of this matter.