Jesus Aleman v. Cott Beverages Canada, 2009 HRTO 2026

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jesus Aleman

Applicant

-and-

Cott Beverages Canada, a division of Cott Corporation

Respondent

-and-

Teamsters Local Union 938

Intervenor

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: November 25, 2009

Citation: 2009 HRTO 2026

Indexed as: Aleman v. Cott Beverages Canada

1This is an Application filed June 26, 2009 under Part VI 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 respondents’ request for deferral in light of a parallel arbitration proceeding.

DEFERRAL REQUEST

2The complaint underlying the present Application filed with the Ontario Human Rights Commission on December 19, 2007 alleges a failure to accommodate the applicant’s disability. On April 14, 2008, the Intervenor filed a grievance alleging workplace failure to accommodate.

3The grievance was referred to arbitration and the parties have appeared before the arbitrator on October 29, 2008. The parties agreed to adjourn the grievance to allow the applicant to participate in a functional abilities evaluation and an independent medical examination. Upon receipt of this information, the Intervenor asserts that it advised the applicant that the grievance had no prospect of success. The grievance was adjourned sine die to permit the applicant to seek legal advice.

4The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. The 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.

5Although the Intervenor has not formally withdrawn the grievance, it is apparent that it does not intend to proceed with the grievance. In these circumstances, I do not find that it would be fair to defer the Application.

6The parties have indicated an interest in mediation. The Tribunal will contact the parties to schedule a date for mediation.