Ryan Willison v. Flex-N-Gate Seeburn, 2011 HRTO 250

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ryan Willison

Applicant

-and-

Flex-N-Gate Seeburn, a Division of Ventra Group Co.,

Ruth Griepsma and Gord Neil

Respondents

United Steel, Paper- and- Forestry, Rubber,

Manufacturing, Energy, Allied Industrial and

Service Workers International Union (United Steelworkers)

Intervener

interim DECISION

Adjudicator: Kathleen Martin

Date: February 4, 2011

Citation: 2011 HRTO 250

Indexed as: Willison v. Flex-N-Gate Seeburn

1This is an Application filed on September 3, 2010 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 addresses the union’s Request to Intervene and the respondents’ request for dismissal on the basis of section 45.1.

Background

2The Application arises out of the applicant’s employment with the organization respondent. The applicant alleges that he is being discriminated against based on his disability relying on events that occurred in the period July 22 2009 to the date of Application. Among other things, the applicant alleges that he was not recalled to employment from lay-off. He further alleges that because he was denied WSIB benefits, the organization respondent would not accommodate him in respect of his restrictions. As a remedy, the applicant seeks monetary compensation, reinstatement in employment, restoration of seniority and human rights training.

3The Application refers to a grievance dated September 28, 2009. The grievance alleges that management failed to accommodate the applicant, and that he should have been told on July 22, 2009, that he was being recalled to employment. The applicant refers to having received conflicting information as to the status of the grievance.

4On December 13, 2010, the respondents filed a Response. The respondents seek dismissal of the Application on the basis that another proceeding has appropriately dealt with the substance of the Application. The other proceeding is identified as “grievance arbitration, WSIB Appeals and WSIAT”. The accompanying explanation refers to an outstanding grievance which is “not yet resolved” and a WSIB appeal. With respect to the latter, it would appear that the applicant was denied benefits on October 21, 2008, and an objection was filed on July 3, 2009. The accompanying documentation refers to the file being withdrawn March 5, 2010 without prejudice for the purpose of obtaining further medical.

5On December 14, 2010, the Tribunal delivered the Response to the applicant indicating that the applicant must file a Reply and include complete submissions in response to the respondent’s request to dismiss.

6On December 15, 2010, the applicant’s union filed a Request to Intervene. In the accompanying narrative, the union references the grievance being filed and meetings between the parties and the union, but does not expressly address the status of the grievance.

7The Tribunal has not received a Reply or a response to the union’s Request to Intervene and the time for receiving the same has elapsed.

Request to Intervene

8The union seeks intervention on the basis that the Application raises issues regarding the union’s representation of the applicant and because the union could be affected by the remedy requested. No party has objected to the union’s Request.

[9] Having regard to the material on file including the remedy sought, the union’s Request to Intervene is granted. The extent of the union’s participation will be determined by the Vice-chair or Member hearing the Application.

Request to Dismiss

[10] Section 45.1 of the Code provides as follows:

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.

11In the circumstances of this case, even accepting there are other proceedings, there is no indication in the material filed that these other proceedings have dealt with the substance of the Application by way of decision or some other conclusion. The respondents’ submissions refer to the grievance, but indicate that it is “not yet resolved”. Further, while there is reference to a decision of the WSIB denying a claim for benefits, the decision is dated October 21, 2008 which is nine months prior to the allegations in the Application. Other than by way of background, it is not apparent that the issue of WSIB benefits relates to the allegations of failing to recall and accommodate the applicant.

12Based on the above I do not find that section 45.1 has application in these circumstances.

Request Submissions on Deferral

13However, having regard to the Response, I find it appropriate to seek the parties submissions on whether or not the Application should be deferred to the grievance process.

14Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, on its own initiative or on the request of a party, defer consideration of an application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

15The parties and the union are directed to file submissions on the status of the grievance; their position on deferral; and any submissions in support of their position. The submissions should be delivered to the other parties and filed with the Tribunal by February 18, 2011.

16I am not seized.