Nicholson v. Bombardier, 2011 HRTO 938

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karen Nicholson

Applicant

-and-

Bombardier Inc. and Canadian National Railway Company

Respondents

-and-

Teamster Canada Rail Conference, Division 660

Intervenor

Interim Decision

Adjudicator: Ena Chadha Date: May 16, 2011 Citation: 2011 HRTO 938 Indexed as: Nicholson v. Bombardier

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), on January 4, 2011, alleging discrimination with respect to employment on the basis of sex and record of offences.

2The applicant alleges that her employer respondent, Bombardier Inc. ("Bombardier"), discriminated against her by subjecting her to unfair discipline following a safety infraction and has failed to take appropriate steps to return her to work. The applicant also alleges that the co-respondent, Canadian National Railway Company ("CN Rail"), was a party to the discrimination because it unfairly banned her from operating trains on its rail system. The applicant alleges that male workers in similar situations have been treated less harshly.

3On February 23, 2011, the Tribunal issued a Notice of Application to the respondents and the named affected party, Teamster Canada Conference Rail Division 660 ("Teamster"), the applicant's union.

4On March 30, 2011, Teamster's filed a request to intervene in this proceeding indicating that it has a collective agreement with the employer Bombardier and that it has represented the applicant as her bargaining agent in a grievance regarding this matter.

5On March 30, 2011, Bombardier filed its Response denying the allegations of discrimination. Bombardier indicates that it cannot allow the applicant to work as conductor because it must comply with the ban imposed by CN Rail as the owner of the rail lands and with the exclusive authority to permit or prohibit any person from operating on its property.

6On April 18, 2011, CN Rail filed its Response, wherein it requests that the Tribunal dismiss the Application as against it because it is a federally regulated enterprise and does not fall under provincial legislation in Ontario. CN Rail indicates that by virtue of section 92(10) of the Constitution Act, 1867, it is federally regulated undertaking subject to the Canadian Human Rights Act, RSC 1985, c H-6.

7On May 10, 2011, the applicant filed a Reply setting out the factual points that she disputes.

REQUEST TO INTERVENE

8As stated in Bettencourt v. Peel District School Board, 2010 HRTO 1644, a 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. In accordance with the Tribunal's standard practice, where an applicant is a member of a bargaining unit represented by a union, Teamster's request to intervene is granted. The scope of Teamster's participation in the hearing on the merits will be decided by the adjudicator. The style of cause is amended accordingly.

DIRECTIONS

9Neither the applicant nor Bombardier have filed submissions in response to the CN Rail's request to dismiss the Application as against it on the basis that the Tribunal does not have jurisdiction because it is a federally regulated enterprise.

10The Tribunal directs the parties and the intervenor to provide written submissions and any legal authorities with respect to whether the Application, in whole or in part, is outside the jurisdiction of this Tribunal. The parties are directed to deliver to each other and to file with the Tribunal their written submissions and legal authorities within 21 days of the date of this Interim Decision.

11The Tribunal will consider the parties' submissions and may determine issues and future steps accordingly.

12I am not seized of this matter.