Dunbar v. Haley Industries, 2009 HRTO 278

Human Rights Tribunal of Ontario

B E T W E E N:

Raymond Dunbar Applicant

-and-

Haley Industries Limited / Magellan Aerospace Corporation, Ron Brazeau and Jim Lemenchick Respondents

-and-

United Steelworkers, Local 4820 Intervenor

INTERIM DECISION

Adjudicator: Faisal Bhabha Date: March 11, 2009 Citation: 2009 HRTO 278 Indexed as: Dunbar v. Haley Industries

1This is an Application filed November 28, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), alleging discrimination in employment on the basis of disability.

2The respondents filed a full Response on January 15, 2009, in which they make a request for early dismissal and, alternatively, for deferral of the Application pursuant to s. 45 of the Code. Also on January 15, 2009, the applicant's union, United Steelworkers, Local 4820 (the "union"), filed a Form 5 seeking to be added as an intervenor in these proceedings.

3The purpose of this Interim Decision is to consider the union's Request to Intervene and to deal with the issue of whether it is appropriate for the Tribunal to dismiss the Application or defer it pending the conclusion of another related proceeding.

REQUEST TO INTERVENE

4In this Application, the applicant alleges discrimination in employment on the ground of disability. The union is the bargaining agent for employees in the applicant's workplace. The Tribunal, therefore, gave notice of the Application to the union.

5The union seeks to intervene in accordance with Rules 11.2 and 11.3 of the Tribunal's Rules of Procedure. Neither the applicant nor the respondents made submissions in respect of the union's Request to Intervene.

6The union represented the applicant in a grievance arising out of the facts that gave rise to this Application. It also is the respondent in a duty of fair representation complaint by the applicant currently before the Ontario Labour Relations Board (the "Board"). The union clearly has a significant interest in the outcome of the Application, including the remedial orders requested by the applicant. The union's request to intervene is granted.

DISMISSAL AND DEFERRAL

7The respondents ask that the Tribunal dismiss the Application without a hearing for being frivolous, vexatious and without foundation. In support of this request, the respondents point to an arbitration award arising out of a grievance that allegedly substantially addresses the very same issues that the applicant seeks to have decided in this Application.

8The respondents also request, in the alternative, that the Application be deferred pending the resolution of a duty of fair representation complaint brought by the applicant against the union at the Board. The union, in its request to intervene, supports the respondents' request for deferral.

9The 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 (Rule 14.1). 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.

10The Application before the Tribunal alleges discrimination by the respondent employer under the Code. The complaint before the Board is about an alleged breach of the union's duties towards the applicant under the Labour Relations Act, 1995, S.O. 1995, c.1, Schedule A. In other words, this Application is between the applicant and the respondents, while the duty of fair representation complaint is between the applicant and the union. Although there may be an overlap in some of the facts relevant to each, the proceedings are distinct and involve different legal frameworks. It cannot be said the Application involves parties that are involved in ongoing litigation addressing substantially the same issues. In these circumstances, deferral is not appropriate.

11The Tribunal does not find it necessary to consider the respondents' request for early dismissal at this stage of the process. Given that both parties have agreed to mediation, the Tribunal will schedule the matter for mediation. If the matter does not resolve at mediation, the Tribunal will consider how to proceed regarding the issue of dismissal.

12I am not seized of this matter.