McLean v. Ontario Power Generation, 2011 HRTO 1282

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffery McLean

Applicant

-and-

Ontario Power Generation

Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: July 6, 2011

Citation: 2011 HRTO 1282

Indexed as: McLean v. Ontario Power Generation

1This is an Application filed on April 12, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with a Request for Intervention and Requests made by the respondent for dismissal and deferral of the Application.

2The applicant alleges discrimination on the basis of disability with respect to his employment.

Dismissal

3The Response contains a Request to Dismiss this matter on the basis that the applicant has filed a civil action in relation to the same issues as alleged in the Application. That Request appears to be withdrawn on the basis of the June 14, 2011 email from respondent counsel confirming for the Tribunal that no civil action exists.

4The Response contains a second request to dismiss this Application pursuant to section 45.1 of the Code on the basis that a grievance was filed and subsequently withdrawn in relation to the same allegations raised in the Application.

5Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

6Both parties agree that a grievance was filed in relation to the accommodation issues raised in this Application. The parties participated in mediation and the mediation failed to result in a settlement. The grievance was ultimately withdrawn. There is no basis, on the facts of this case, for asserting that there was another proceeding within which the accommodation issues raised in the Application were appropriately dealt with. This Request is therefore dismissed.

Deferral

7The Request for dismissal on the basis of section 45.1 also includes a reference to a grievance which has been filed in relation to the employer’s alleged failure to select the applicant for certain vacant positions. This ongoing grievance is mentioned a second time in the Response in the Request for deferral of the Application. There is also a Request to Intervene filed by the Power Workers’ Union (“union”) which contains the same Request. The union indicates that the matter is scheduled for mediation July 27, 2011.

8The applicant does not refer directly to the outstanding grievance in his Reply. The respondent describes the ongoing grievance as related to a portion of the Application before the Tribunal. The union describes the ongoing grievance as one which covers all of the allegations made in the Application to the Tribunal.

9The text of the grievance is as follows:

OPG Nuclear has failed to select the grievor for the following vacancies:

Vacancy #0901238 Supply Inspection Technologists

Vacancy #0901254 Training Technician Conventional Safety

Vacancy #001327 Nuclear Operator in Training

This is a violation of Articles 2, 4, 6, 10, Mid-Term NUC-R-1026, the Ontario Human Rights Code and any other provision of the Collective Agreement or relevant statute.

Remedy

The PWU requires the grievor to be made whole, be selected to the NOIT position retroactively and any other remedies deemed appropriate

10Although it is not entirely clear, the grievances appear to relate to vacancies which are connected to issues of accommodation. It is not apparent, however, to what extent this grievance is intended to encompass the broader, more general accommodation issues raised in the Application. The Request for Deferral of the Application is therefore dismissed.

Intervention

11The union is seeking to intervene on the basis that it has an interest in the outcome of the Application. The union asserts that if the Tribunal finds in favour of the applicant, the remedies ordered by the Tribunal could have a considerable impact on the union’s bargaining unit members.

12In the circumstances I am satisfied that the union should be granted intervenor status.

13Order

1. The Requests for dismissal and deferral of this Application are dismissed.

2. The Power Workers’ Union is added to this Application as an intervenor. The Registrar will provide the union with copies of the materials filed by the parties to date. The parties are instructed to copy the union with any subsequent materials in this matter.

3. The extent of the union’s participation in the hearing will be determined by the presiding Vice-chair or Member.

4. The parties have indicated their willingness to attempt to resolve this matter and as a result, the Tribunal will schedule the Application for mediation.

14I am not seized.