Amina Hansiod v. Cara Airlines Solutions, 2009 HRTO 738

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amina Hansiod

Applicant

-and-

Cara Airlines Solutions

Respondent

-and-

Teamsters Local Union 419

Intervener

INTERIM DECISION

Adjudicator: Eric Whist

Date: June 2, 2009

Citation: 2009 HRTO 738

Indexed as: Hansiod v. Cara Airline Solutions

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on March 3, 2009. The applicant alleges the respondent, her employer, has discriminated against her on the basis of her disability contrary to section 5 of the Code.

2This Interim Decision deals with a request to intervene and the issue of deferral.

Request to Intervene

3The Application identifies that the applicant is a member of a union, Teamsters Local Union 419 (the “union”). Accordingly, the union was sent a copy of the Application. The union, pursuant to Rule 11 of the Tribunal’s Rules of Procedure, submitted a Request to Intervene to the Tribunal on April 20, 2009.

4The union indicates that a grievance (#4493) was filed on behalf of the applicant in late 2008 or early 2009 on the grounds of a “Human rights violation, failure to accommodate an injured worker.” The union states that this grievance was settled on April 14, 2009 on a without-prejudice/precedent basis. As a result of the grievance settlement the applicant was reinstated to work. However, an unresolved issue was whether the respondent failed to accommodate the applicant’s disability and owed her compensation.

5The union indicates that this issue of compensation is part of the allegation of discrimination contained in the Application. The union would like to intervene as they have an interest in the particular outcome of this dispute between the applicant and the respondent. The union also states that the respondent is taking the position that it does not have to accommodate employees whose injuries are not compensable under the WISB and this position could adversely affect not only the applicant but other union members.

6The Tribunal has received no response to the Request to Intervene from the respondent or the applicant.

7The union’s Request to Intervene is granted. The union has an understandable interest in the resolution of the applicant’s Application having been involved in a related grievance. It has an interest in the possible impact of this matter on other union members. The Request to Intervene has not been opposed.

8The scope of the union’s involvement will need to be determined. I will allow the union to intervene on the further preliminary issue of deferral. If this matter proceeds to a Tribunal hearing it would be the presiding Tribunal Vice-chair who would decide the nature of the union’s role.

Deferral

9It appears that the applicant’s grievance (#4439) has, in fact, not been resolved but is going to arbitration. The Response, filed April 21, 2009, states that the union filed a grievance in December 2008 on behalf of the applicant claiming a human rights violation, failure to accommodate and full redress and that this grievance has been referred to arbitration and that the parties have agreed on an arbitrator to hear the grievance.

10In a letter to the Tribunal dated April 27, 2009 the union states that since filing its Request to Intervene the union and the respondent have agreed to refer grievance #4493 to arbitration for final resolution of all issues including any compensation owed to the Applicant.

11The arbitration may well resolve the human rights issues raised in the Application. This raises the question of whether the Tribunal should defer consideration of the Application pending the outcome of the arbitration process.

12However, it is not entirely clear what the positions of the parties and the union are at the present time on the issue of deferral. In the Application filed March 16, 2009, the applicant states that there is an ongoing union grievance but that she is not seeking a deferral. The Response, dated April 21, 2009 states that there is an ongoing grievance but fails to indicate whether the respondent is seeking a deferral of the Application or not. The union’s letter of April 27, 2009 is silent on the issue of deferral.

13Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, on its own initiative or on the request of a party, defer consideration of an application. Before making such a determination, the Tribunal will give the parties an opportunity to make submissions on this issue.

14The Tribunal requests submissions from the parties and from the union, if it so chooses on whether the Tribunal should defer consideration of the Application pending the outcome of Arbitration, in accordance with the following schedule:

a. By no later than June 19, 2009, the respondent shall serve and file their written submissions on whether they are seeking a deferral and if so, why;

b. By no later than June 26, 2009, the applicant and the union shall serve and file their written submissions in response; and

c. By no later than July 3, 2009, the respondent shall serve and file any reply.

15I am not seized of this matter.