Bettencourt v. Peel District School Board, 2010 HRTO 1644

Human Rights Tribunal of Ontario

B E T W E E N:

Ricardo Bettencourt

Applicant

-and-

Peel District School Board, Bob Bond and Gord Thompson

Respondents

-and-

Canadian Union of Public Employees, Local 2544

Intervenor

INTERIM DECISION

Adjudicator: Mary Truemner

Date: August 5, 2010

Citation: 2010 HRTO 1644

Indexed as: Bettencourt v. Peel District School Board

1The applicant filed this Application on January 22, 2010 under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"), alleging discrimination in employment on the basis of disability. The allegations in his Application concern discipline imposed by his employer, harassment, reduction of his hours, denial of promotions and, ultimately, termination of his employment.

2The applicant is a member of the Canadian Union of Public Employees, Local 2544 ("the Union"). The Union filed a grievance on the applicant's behalf when his employment was terminated. The respondent, Peel District School Board ("the Board"), settled the grievance with the Union on December 3, 2009, before it went to arbitration, and the grievance was withdrawn. On January 18, 2010, the Applicant filed an application with the Ontario Labour Relations Board ("OLRB") claiming that the Union had violated its duty of fair representation under section 74 of the Labour Relations Act 1995, S.O. 1995, c. 1, Sch. A, as amended by settling his grievance, and the Board has intervened in the application to the OLRB.

3This decision deals with the Union's Request to Intervene in this Application to the Tribunal and with the respondents' request to defer it pending the outcome of the Duty of Fair Representation application to the OLRB.

Request to Intervene

4A union almost always has an interest in a human rights application involving a member, and unless there are exceptional circumstances, the Tribunal will grant the bargaining agent intervenor status when requested. The Union in this case was the bargaining agent for the applicant, and filed a grievance on his behalf with respect to some of the events at issue, specifically, the termination of the applicant's employment. When the Union settled and withdrew the grievance, the applicant made his application to the OLRB against the Union. While the applicant opposes the Union's Request to Intervene, the Application to the Tribunal identifies and references the Union, alleging inappropriate conduct with respect to the allegations of discrimination against the respondents. I am satisfied that the Union has an interest in the Application, and the Request to Intervene is granted.

DEFERRAL

5In its Response, the respondents requested that this Application be deferred pending the conclusion of the OLRB proceeding. Subsequently, the Tribunal issued a Notice of Intent to Defer to the parties, inviting submissions. The Union supported the deferral and the applicant opposed it.

6The application to the OLRB is based on an allegation that the union violated its duties towards the applicant under the Labour Relations Act because the applicant did not want the Union to settle his grievance. The respondents' position, supported by the Union, is that the OLRB proceeding may result in an order referring the applicant's grievance back to arbitration, and that arbitration would deal with some of the issues contained in the Application to the Tribunal. Therefore, according to the respondents' submissions, the substance of the Application will have been dealt with in another proceeding with the meaning of section 45.1 of the Code.

7Although there is some overlap between the facts at issue in the application to the OLRB, and the Application before the Tribunal, and although the Board has intervened in the OLRB matter, the legal issues and the legal framework are different. This Application alleges discrimination as against the Board, not the Union, for discriminating against him because of his disability. It is also much broader in scope than the matter covered by the grievance which is the alleged breach by the Union of its duty to fairly represent the applicant. I therefore see no reason to defer this Application.

8The parties have agreed to mediation and the Tribunal will proceed in scheduling it. If mediation does not result in a settlement of the Application, then the Tribunal will subsequently deal with the respondents' further requests.

9I am not seized of this matter.