Andrews v. Hamilton (City), 2010 HRTO 1418

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kirk Andrews

Applicant

-and-

City of Hamilton

Respondent

-and-

Christian Labour Association of Canada

Intervener

INTERIM DECISION

Adjudicator: Ena Chadha

Date: June 29, 2010

Citation: 2010 HRTO 1418

Indexed as: Andrews v. Hamilton (City)

1The applicant filed an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on February 3, 2010, alleging discrimination in employment on the basis of disability. The Application notes that the facts of the Application were part of a union grievance and identified the applicant’s union, the Christian Labour Association of Canada (“CLAC”), as an affected party.

2On May 17, 2010, CLAC filed a Request to Intervene. In this request, CLAC indicated that the applicant, the respondent, and the union signed a grievance settlement on October 1, 2009.

3The respondent filed a Response on May 28, 2010. In its Response, the respondent requests early dismissal of the Application on the basis that the applicant signed a full and final release with respect to the matters raised in the Application. The respondent alleges that the applicant, the union, and the respondent successfully engaged in mediation on October 1, 2009, to resolve a grievance filed on behalf of the applicant and this represented a full and final settlement and release of all matters between the parties. The respondent submits that the Application must be dismissed as the applicant freely executed a full and final release extinguishing his employment-related claims. The respondent provided a copy of the Memorandum of Settlement.

4On June 11, 2010, CLAC filed a Response to the Request for early dismissal. Although CLAC states that it takes no position at this time, CLAC notes that the applicant voluntarily signed a full and final release dealing with the same matter.

5On June 14, 2010, the applicant filed his Response to the Request for early dismissal. The applicant alleges that he was under a state of duress at the time of signing the Memorandum of Settlement due to the demeanour and conduct of the mediator. The applicant submits that he misunderstood his rights at the time of signing the mediated settlement. The applicant further alleges that the Application pertains to matters that occurred after the execution of the mediated settlement, including an allegation that the respondent breached the grievance settlement.

REQUEST TO INTERVENE

6CLAC is the applicant’s bargaining agent with the respondent. CLAC filed a grievance on behalf of the applicant regarding the applicant’s employment-related issues, some of which appear to be raised in the Application. The respondent and CLAC allege that the grievance was settled. In his Application, the applicant named CLAC as an affected party and in his Response submissions, the applicant describes CLAC’s role in dealing with his employment-related concerns.

7The Tribunal’s Rules of Procedure provide:

11.1 The Tribunal may allow a person or organization to intervene in any case at any time on such terms as the Tribunal may determine. The Tribunal will determine the extent to which an intervenor will be permitted to participate in a proceeding.

8The Application appears to raise issues that may affect CLAC. As such, the Request to Intervene is granted. The extent of CLAC’s participation in any future proceedings will be determined by the Vice-chair or Member who presides over those proceedings.

REQUEST TO DISMISS

9I find that it is appropriate for the Tribunal to determine the request for early dismissal as a preliminary matter. The Registrar will schedule a one-day hearing to consider whether all or part of the Application should be dismissed on the basis of the Release or pursuant to section 45.1 of the Code.

10If any party intends to rely upon documentary material, legal authorities or submissions not included in the Tribunal’s file, it shall deliver such materials to the other parties and file them with the Tribunal no later than 14 days before the scheduled hearing. If any party intends to call witnesses regarding the issues, it shall deliver to the other parties and file with the Tribunal a letter setting out the name of the witness and a summary of the witness’s intended evidence by the same deadline.

11I am not seized of this matter.