Bohdan Czornodolskyj v. Bombardier Inc., 2009 HRTO 2193

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bohdan Czornodolskyj

Applicant

-and-

Bombardier Inc.

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: December 17, 2009

Citation: 2009 HRTO 2193

Indexed as: Czornodolskyj 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”), alleging discrimination in the context of employment on the basis of age.

2The 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 proceeding. 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.

3The applicant submitted that the grievance hearing had not taken place by August 20, 2009. He 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 but will not be addressed at the grievance arbitration.

4In an Interim Decision, 2009 HRTO 1499, the Tribunal invited submissions from the Canadian Auto Workers, Local 112 (the “Union”) regarding whether the Application should be deferred pending the completion of the grievance proceeding. The Union filed submissions on October 2, 2009.

5The Union agrees with the respondent that the grievance addresses the issues raised in the Application. According to the Union, the grievance arbitration has not taken place and no hearing dates have been scheduled. However, the Union and the respondent are engaged in settlement discussions. The Union states that the applicant is aware of and involved in these discussions.

6The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. This is because grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement. See Blackman v. Ontario (Community Safety and Correctional Services), 2009 HRTO 970.

7Based on the material before me, I am satisfied that many of the facts and issues raised by this Application are part of the grievance process. In the circumstances, the arbitration proceeding should proceed to its conclusion before the Tribunal will deal with whatever might remain of the merits of the Application.

8Accordingly, the Application will be deferred pending the completion of the grievance and arbitration process.

9The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which a party may request that the Application proceed.

10I am not seized of this matter.