Wedderburn v. Air Liquide Canada, 2009 HRTO 2064

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Floyd Wedderburn

Applicant

-and-

Air Liquide Canada Inc.

Respondent

-and-

United Steelworkers of America, Local 9042

Intervenor

interim DECISION

Adjudicator: Sheri D. Price

Date: November 30, 2009

Citation: 2009 HRTO 2064

Indexed as: Wedderburn v. Air Liquide Canada

1This Application, filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleges that the respondent discriminated against the applicant on the basis of disability in respect of employment.

2The purpose of this Interim Decision is to provide direction regarding the respondent’s Request for Early Dismissal of the Application on the basis that the applicant signed a full and final release with respect to the subject-matter of the Application; and also to determine the Request to Intervene filed by the applicant’s former trade union, the United Steelworkers of America, Local 9042.

FULL AND FINAL RELEASE

3The respondent contends that the applicant’s employment was terminated by agreement of the applicant, his trade union and the respondent, and that the terms of that agreement are set out in a “Final Agreement” signed by the parties, including the applicant, on April 9, 2009. Pursuant to the terms of the “Final Agreement”, the respondent submits that the applicant agreed, among other things, that he would be permanently laid off from his employment with the respondent, without any right of recall. The agreement also contains the following terms:

The Employee or/and the Union withdraws complaint, claim, grievance, action or any proceedings regarding his employment with the Employer …

In consideration of the above, the Employee renounces to file any complaint, claim, grievance, action or any proceedings against the Union and/or the Employer.

4The respondent requests that the Tribunal dismiss the Application in its entirety based on the Final Agreement, which it submits contains a Full and Final Release in respect of the subject-matter of the Application.

5It is appropriate for the Tribunal to decide, as a preliminary matter, the respondent’s request for early dismissal.

6Section 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 will schedule a teleconference to hear submissions on the issue of whether the Tribunal should dismiss the Application as a result of the applicant having signed the Final Agreement.

7The following directions shall apply to the conference call:

(a) The applicant should be prepared to proceed first, by responding to the respondent’s written submissions filed with its Response with regard to the signed Final Agreement.

(b) If either party wishes to rely on any written materials (such as written submissions, documents or case law) or facts not contained in the Application or Response, they must deliver any such additional written materials or a written statement outlining any additional facts they wish to rely upon to the other party and file it with the Tribunal at least 14 days before the conference call.

REQUEST TO INTERVENE

8The applicant’s trade union while employed by the respondent, the United Steelworkers of America, Local 9042, has filed a Request to Intervene in this proceeding on the basis that the respondent seeks to have the Application on the basis of a Final Agreement to which it was a signatory; and on the basis that one of the remedies sought in the Application, namely, reinstatement to employment, would affect the trade union and its administration of the collective agreement.

9The Request to Intervene was delivered to the applicant and the respondent. Neither has filed a response to the Request within the 21-day time period for filing a Response.

10The trade union appears to have a sufficient interest in the preliminary issue to be granted intervenor status in respect of that issue and none of the parties has opposed the Request to Intervene. The trade union, United Steelworkers of America Local 9042, is hereby granted leave to intervene in the hearing regarding the preliminary issue to be determined.

11If the matter is not dismissed on the basis of the respondent’s request, following the preliminary hearing, the Tribunal will consider whether it is appropriate to allow the Union to intervene with respect to the merits of the Application, and if so, to what extent.

12I am not seized of this matter.