Human Rights Tribunal of Ontario
B E T W E E N:
Zelalem Gammada
Applicant
-and-
Mount Pleasant Group of Cemeteries and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) Local 1643
Respondents
INTERIM DECISION
Adjudicator: Ken Bhattacharjee Date: August 29, 2011 Citation: 2011 HRTO 1608 Indexed as: Gammada v. Mount Pleasant Group of Cemeteries
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 November 15, 2010, which alleged that the respondents discriminated against him with respect to employment.
2The respondent employer filed a Response on February 25, 2011, which denied the allegations of discrimination, and, pursuant to s. 45.1 of the Code, requested an early dismissal of the Application against it on the basis that an arbitration decision appropriately dealt with the substance of the Application.
3The respondent union filed a Response on February 24, 2011, which denied the allegations of discrimination, and requested that the Tribunal dismiss the Application against it because the application fails to raise a prima facie case of discrimination.
4The applicant filed a Reply and a Notice of Constitutional Question on June 30, 2011, which opposed the respondents’ requests and alleged that s. 45.1 of the Code violates s. 7 of the of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 (the “Charter”). The applicant served the Notice on the Attorney General of Ontario and the Attorney General of Canada.
5In the circumstances, the Tribunal’s Registrar will schedule a half-day teleconference to hear oral submissions from the parties with respect to three issues:
Should the Tribunal dismiss all or part of the Application against the respondent employer on the basis that another proceeding has appropriately dealt with the substance of all or part of the Application?
Does s. 45.1 of the Code violate s. 7 of the Charter?
Should the Tribunal dismiss all or part of the Application against the respondent union on the basis that there is no reasonable prospect that the Application or part of the Application will succeed?
6Pursuant to s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the Attorney General of Ontario and the Attorney General of Canada are entitled to introduce evidence and make submissions in respect of the Constitutional Question. Accordingly, if they choose to participate, within thirty days of the date of this Interim Decision, they shall file a Request to Intervene (Form 5) and complete parts A (except for A4) and C.
7If any party wishes to rely on case law or other supporting material at the teleconference hearing, they are directed to deliver this material to each other and the Tribunal by no later than two weeks before the date of the hearing.
8I am not seized of this matter.
Dated at Toronto, this 29th day of August, 2011.
‘Signed by”
Ken Bhattacharjee
Vice-chair