Fish v. National Steel Car Limited, 2011 HRTO 1833

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Fish

Applicant

-and-

National Steel Car Limited

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: October 12, 2011

Citation: 2011 HRTO 1833

Indexed as: Fish v. National Steel Car Limited

1The applicant filed this Application on May 25, 2011 alleging discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

SECTION 45.1

2The respondent filed a Response seeking early dismissal of the Application on the basis that another proceeding had appropriately dealt with the substance of the Application. The applicant had previously filed two grievances, which were settled, concerning the respondent’s alleged failure to recall him from layoff.

3Briefly, the applicant injured his right hand on the job. He returned to work in alternative positions, when work was available. During this period he was subject to layoffs due to the shortage of work. In 2010, the applicant apparently filed two grievances concerning the company’s alleged failure to recall him to work because of his disability. The company, applicant and union signed minutes of settlement on April 26, 2010 with respect to these grievances. The terms of that settlement are as follows:

1. The grievor will be recalled when work is available subject to his restrictions.
2. This settlement is made without prejudice or precedent to either party.

4Since the signing of the minutes of settlement, the applicant alleges he has not been recalled to work even though suitable work is available within his restrictions.

5The respondent states in response that the parties agreed, at the time of the signing of the agreement, there were no positions available that were within the applicant’s restrictions. It argues that the situation has not changed in the intervening period. That is, the applicant’s restrictions have not been lifted, nor has any position that was not available in April 2010 since come available.

6In his Reply, the applicant argues that the minutes of settlement were signed at a time when no work was available, but since that time a full recall of all workers on lay-off has occurred and, indeed, additional workers hired. He disputes that by signing the minutes he accepted that the company had no positions available that he was capable of doing, only that they had no positions available at the time of signing.

7Section 45.1 of the Code states:

45.1 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.

8The minutes do not state on their face that the applicant was accepting that no suitable work for him was available within the respondent’s workforce. The only term is that the company agrees to recall the applicant when suitable work is available.

9Moreover, there is no clause that states that disputes about suitable work should be submitted to a particular arbitrator. Accordingly, it would appear that the applicant would have to file a new grievance if he wished to deal with this issue via the grievance process. If the applicant chooses at this time to file an application to the Tribunal to deal with his dispute, rather than filing a grievance, he is not precluded under s. 45.1 from so doing.

10The respondent’s request to dismiss the Application under s. 45.1 is denied.

REQUEST TO QUASH RULE 21.1

11The applicant filed a Request to Expedite, which was denied. No reasons were provided in accordance with Rule 21.1 of the Tribunal’s Rules of Procedure. The applicant filed a Request for Order During Proceedings on August 5, 2011, seeking to have Rule 21.2.1 “quashed”.

12This request is accompanied by extremely limited submissions. If the applicant seeks to pursue this argument, he should deliver to the respondent and Tribunal more detailed submissions within three weeks of the date of this Interim Decision. The respondent may respond within five weeks of the date of this Interim Decision.

13In the event that the applicant files these submissions, they should address the following issues: (i) on what basis does the Tribunal have the power to “quash” one of its rules in an adjudicative decision; (ii) on what basis does the applicant allege that a decision not to expedite an Application is a “final” decision pursuant to the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22; (iii) on what basis does the applicant argue that procedural fairness requires reasons for all decisions, in particular in light of the Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817?

ORDER

14In sum, I have made the following orders/directions:

a. The respondent’s request to dismiss the Application under s. 45.1 is dismissed;

b. If the applicant wishes to pursue his Request for Order During Proceedings to quash Rule 21.1, he should deliver to the respondent and Tribunal detailed submissions addressing the questions posed by the Tribunal in this Interim Decision within three weeks of this Interim Decision; and

c. In the event that the applicant files such submissions, the respondent may deliver to the applicant and Tribunal response submissions within five weeks of this Interim Decision.

15In the meantime, the Tribunal will process this Application.

16I am not seized of this matter.