Llewellyn Caldeira v. Sysco Food Services of Toronto, 2009 HRTO 823

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Llewellyn Caldeira

Applicant

-and-

Sysco Food Services of Toronto

Respondent

Interim decision

Adjudicator: Michelle Flaherty Date: June 10, 2009 Citation: 2009 HRTO 823 Indexed as: Caldeira v. Sysco Food Services of Toronto

1The applicant filed an Application with the Tribunal pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on February 23, 2009. The applicant alleges discrimination in the area of employment on the basis of disability and, more specifically, that the respondent failed to properly accommodate his disability.

2The applicant’s union, the Teamsters Local Union No. 419 (“Union”), has been identified as affected person and has requested leave to intervene.

3This Interim Decision addresses the respondent’s request for a deferral pursuant to Rule 14.1 because of an ongoing grievance under a collective agreement based on the same facts and issues.

4The 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.

5The respondent states that the applicant filed a grievance, which was scheduled to proceed to arbitration in early 2009. In advance of the scheduled hearing date, the parties reached a tentative settlement agreement and the arbitration date was cancelled. According to the respondent, the tentative agreement collapsed and the parties are now in the process of rescheduling arbitration dates.

6The applicant denies that a grievance proceeding is ongoing and provides a letter from the Union dated January 28, 2009 which references a settlement agreement.

7Within two weeks of the date of this Interim Decision, the applicant is directed to file with the Tribunal and provide to the respondent and the Union a copy of the final settlement agreement between the parties, if any.

8Within two weeks of the date of this Interim Decision, the respondent is directed to provide to the applicant and the Union and file with the Tribunal information regarding the status of ongoing grievance proceedings, if any, including specific information regarding the scheduling of the arbitration.

9Pursuant to Rule 14.2, where the Tribunal intends to defer consideration of an application, it will first give the parties, any identified trade union or occupational or professional organization and any identified affected persons, an opportunity to make submissions.

10Within two weeks of the date of this Interim Decision, the Union may make written submissions regarding whether the Tribunal should defer consideration of this Application until such time as the grievance is resolved. In these submissions, the Union should address the status of ongoing grievance proceedings, whether such grievance proceedings are based on the same facts and issues as the Application, and whether a settlement agreement has been reached.

11The Registrar will provide a copy of the Application, the Response and this Interim Decision to the Union.

12As I have indicated, the Union, as an affected person, may make submissions on whether this Application ought to be deferred pending the resolution of the grievance. In light of this, the Union’s request to intervene is best considered once the deferral issue has been determined.

13I am not seized of this matter.