Karen Nicholson v. Bombardier Transportation Canada Inc. and CN National Railway Company, 2012 HRTO 2062

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karen Nicholson

Applicant

-and-

Bombardier Transportation Canada Inc. and CN National Railway Company

Respondents

-and-

Teamster Canada Rail Conference, Division 660

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha Date: October 29, 2012 Citation: 2012 HRTO 2062 Indexed as: Nicholson v. Bombardier Transportation Canada Inc.

APPEARANCES

Karen Nicholson, Applicant Self-represented

Bombardier Transportation Canada Inc., Respondent Sarah Crossley, Counsel

CN National Railway Company, Respondent Jacynthe Girard, Counsel

Teamster Canada Rail Conference, Division 660, Intervenor Denis Ellickson, Counsel

INTRODUCTION

1The applicant filed this 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 was a commuter train operator ("CTO" or "conductor") employed by Bombardier Transportation Canada Inc. ("Bombardier"). The applicant alleges that Bombardier discriminated against her by subjecting her to unfair discipline following her involvement in a safety infraction and that Bombardier has failed to take appropriate steps to return her to her CTO job. The applicant also alleges that the co-respondent, Canadian National Railway Company ("CN"), engaged in discrimination because it unfairly imposed a ban prohibiting her from operating trains on its rail system. The applicant alleges that male workers in similar circumstances have been treated less harshly. Although the Application also cites "record of offences", it appears based on the narrative that the applicant's concerns pertain to gender discrimination and not "record of offences" discrimination within the meaning of section 10 of the Code.

3On March 30, 2011, Bombardier filed its Response denying the allegations of discrimination. Bombardier alleges that the applicant cannot work as a train conductor because it must comply with the ban imposed by CN, which has the exclusive authority to permit or prohibit any person on CN property. Bombardier requests that the Tribunal dismiss parts of the Application pursuant to section 45.1 of the Code as appropriately dealt with through a grievance settlement wherein the applicant, her union and Bombardier agreed to reinstate the applicant to a non-operational position. Bombardier submits that the remainder of the Application should also be dismissed as the allegations are linked to CN's ban and, therefore, are outside provincial jurisdiction.

4On April 18, 2011, CN filed its Response requesting that the Tribunal dismiss the Application as against it because, by virtue of section 92(10) of the Constitution Act, 1867, it is a federally-regulated undertaking. CN indicates that as a federally-regulated enterprise it is subject to the Canadian Human Rights Act, R.S.C. 1985, c H-6 and does not come under provincial human rights legislation. If the Application is dismissed as against it and continues to proceed as against Bombardier, CN requests that it be granted intervenor status. CN submits that intervenor status is necessary to protect CN's interests and to provide the Tribunal with an accurate account of the events leading to CN's ban of the applicant from its rail lines.

5In her Reply, filed on May 10, 2011, the applicant maintains that Bombardier has treated her differently compared to male employees in failing to make sufficient efforts to have the ban rescinded by CN. The applicant further alleges that Bombardier could accommodate her in a CTO position on a growing number of rail lines not owned by CN.

Procedural Background

6By Interim Decision 2011 HRTO 938, the Tribunal granted intervenor status to the applicant's union, Teamster Canada Rail Conference, Division 660 ("the intervenor"). In that same decision, the Tribunal directed the parties and the intervenor to provide written submissions and legal authorities with respect to whether the Application, in whole or in part, is outside the jurisdiction of this Tribunal.

7Upon receipt of the written submissions, the Tribunal issued a Case Assessment Direction, dated June 28, 2011, requiring that a one-day hearing be scheduled for oral submissions. As such, on February 7, 2012, the Tribunal convened a preliminary hearing where all parties and the intervenor presented arguments regarding the issues of federal jurisdiction, section 45.1 of the Code and CN's proposed intervention. Following the hearing, at the request of the Tribunal, the parties filed additional written submissions with respect to the issue of jurisdiction.

DECISION

Jurisdiction

8I find that, in accordance with subsections 92(10)(a) and (c) of the Constitution Act, 1867, as an interprovincial railway enterprise declared to be for the general advantage of Canada, CN's control over its rail tracks falls exclusively within federal jurisdiction. Therefore, the Tribunal does not have jurisdiction over the Application as filed against CN.

9I find that the applicant's allegations against Bombardier relate to the terms and conditions of her employment and, therefore, come within the Tribunal's jurisdiction.

Section 45.1

10I find that the parts of the Application pertaining to matters resolved by way of the grievance settlement, specifically the discipline of the applicant and frustration of contract termination of her employment, must be dismissed pursuant to section 45.1 of the Code. The remaining allegations, specifically, the applicant's claim of differential treatment in relation to Bombardier's efforts to have the ban lifted and its failure to assign her with CTO work on non-CN lines, may proceed as not having been dealt with by the grievance settlement.

Intervenor Status

11Based on the consent of the parties and the intervenor, CN is granted intervenor status. The adjudicator overseeing the hearing on the merits of the Application will determine the scope of CN's participation with respect to evidence and/or submissions.

BACKGROUND

12Bombardier is contracted by GO Transit, a regional public transit provider, to operate a commuter train service in the Greater Toronto Area ("GTA") corridor. The applicant commenced employment with Bombardier in March 2008 as a CTO working on GO Transit trains in the GTA.

13The GO Transit trains operating in the GTA corridor are, for the most part, running on rail tracks that are owned and controlled by CN. There is no dispute that CN has absolute lawful authority over its rail lines, including the terms and conditions of the use of the tracks, the lands, and who may or may not be present or work on CN rail lines. In addition to being the owner of the rail tracks, CN also occasionally lends locomotive engineers to Bombardier to assist in the operation of GO Transit trains.

14On November 29, 2008, the applicant was working as the conductor on a GO Transit train that was being operated by a CN locomotive engineer. The CN engineer and the applicant were involved in a serious safety infraction when both simultaneously failed to heed a stop signal. After an investigation, Bombardier terminated the applicant's employment for just cause. CN similarly dismissed its locomotive engineer and the Canadian Railway Office of Arbitration & Dispute Resolution upheld that termination.

15Following a grievance, Bombardier rescinded the applicant's discharge and substituted it with a 27 day suspension. However, the applicant was not able to resume CTO work because CN notified Bombardier that the applicant was banned from entering on CN property and, therefore, prohibited from operating trains on CN rail lines. Consequently, Bombardier again terminated the applicant's employment, this time due to "frustration of contract" because the applicant was unable to perform her CTO duties.

16A grievance with respect to the applicant's second termination was referred to arbitration. In January 2010, at arbitration, the applicant, the intervenor and Bombardier entered into an agreement returning the applicant to work in a lower paying position as a customer service ambassador, which did not require the applicant to work on CN property in an operational capacity. Paragraph 2 of the Minutes of Settlement state that the applicant "shall be permitted to return to work as a CTO upon either CN reconsidering its decision to bar her from working on CN rail lines or those rail lines are no longer under CN's control."

17There is no dispute that the January 2010 Minutes of Settlement is a full and final resolution of the all matters alleged in the second grievance. The parties and the intervenor also agree that paragraph 2 of the Minutes of Settlement expressly contemplates that the CN ban and the continuing effects of the ban are live issues not covered by the agreement. However, the parties and the intervenor dispute whether Bombardier's alleged inaction or involvement in the CN ban comes within federal or provincial jurisdiction. The parties also dispute whether or not the applicant's claim that Bombardier's failure to assign her with CTO work on an increasing number of non-CN lines is part of the settlement.

PARTIES' SUBMISSIONS

CN

18CN argues that it is an interprovincial transportation undertaking and, therefore, by virtue of subsections 92(10)(a) and (c) of the Constitution Act, 1867, is a federally-regulated enterprise. CN notes that the CN Commercialization Act, S.C. 1995, c.24, has declared CN "to be works for the general advantage of Canada." CN contends that it has full authority to control who may enter on its property as an issue of railway safety. CN submits that the applicant's allegations concern matters that fall under the Canadian Human Rights Act, R.S.C. 1985, c H-6 ("CHRA") and in the jurisdiction of the Canadian Human Rights Commission ("CHRC").

Bombardier

19Bombardier acknowledges that CN is federally-regulated and that CN is entitled to dictate the terms and conditions of the use of its rail tracks. Bombardier argues that the applicant's allegations regarding differential treatment in having the ban lifted and a failure to accommodate on non-CN lines are allegations related to CN's ban and, therefore, those allegations should also come within the authority of the CHRA and CHRC. Bombardier agrees to attorn to the jurisdiction of the CHRC in order to avoid multiple proceedings.

20In addition, Bombardier takes that position that it has not discriminated against the applicant because the applicant's own misconduct resulted in CN's imposition of the ban. Bombardier submits that, since there is no dispute that the unfair discipline and frustration of contract termination allegations were fully resolved, the Tribunal should, pursuant to section 45.1 of the Code, dismiss the allegations regarding its efforts to have the ban rescinded and the alleged failure to accommodate as matters also appropriately dealt with by the grievance settlement.

Applicant

21The applicant submits that the Application should not be dismissed as against CN or Bombardier. She argues that CN and Bombardier are both directly implicated in the circumstances of her case and that, if CN is severed from this Application, then she is compelled to pursue recourse before the federal human rights tribunal resulting in dual claims.

22The applicant acknowledges that her allegations regarding the discipline and termination prior to January 2010 were resolved by way of the Minutes of Settlement. However, the applicant asserts that Bombardier's differential treatment in failing to sufficiently advocate to have the ban lifted and its refusal to provide her with a conductor job on non-CN lines are on-going concerns outside the scope of the settlement and properly within this Tribunal's jurisdiction.

Intervenor

23The intervenor argues that CN is not acting qua a federally-regulated undertaking, but rather is acting in relation to a provincial undertaking, namely an intra-provincial commuter rail line that is within the Tribunal's jurisdiction. The intervenor argues that it would be a perverse result to require the applicant to pursue her rights in the federal human rights jurisdiction, while maintaining the current Application before the Tribunal.

24Although the intervenor agrees that the Minutes of Settlement resolved all matters arising out of the grievance, it takes no position with respect to whether or not the applicant's claims regarding Bombardier's efforts to have the ban lifted and accommodation on non-CN rail lines should be dismissed pursuant to section 45.1 of the Code.

ISSUES

25The first issue relates to the Tribunal's jurisdiction over the allegations against CN. The question can be framed as follows: do CN's actions in barring the applicant, an employee of Bombardier working on GO Transit's commuter services, from operating on its rail lines fall within provincial jurisdiction?

26The next set of issues relate to the allegations against Bombardier. First, do the applicant's allegations of discrimination by Bombardier, regarding its efforts to have the CN ban lifted and the assignment of CTO work on non-CN rail lines, come under federal or provincial jurisdiction? Second, given that the parties agree that the Minutes of Settlement appropriately dealt with the allegations of discipline and termination pre-existing January 2010, are the applicant's above-noted claims of discrimination by Bombardier also subject to dismissal under section 45.1 of the Code?

ANALYSIS

Jurisdiction Over the Claims Against CN

27Rule 13.1 of the Tribunal's Rules of Procedure provides that the Tribunal may dismiss part or all of an application that is outside of the jurisdiction of the Tribunal.

28There are a number of legislative provisions which, despite the purely regional nature of the commuter rail service at the heart of this case, make it clear that CN's railway system and operations are a federal work and undertaking.

29By virtue of sections 92(10)(a) and 91(29) of the Constitution Act, 1867, "Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province" are expressly exempt from provincial jurisdiction. Therefore, as an interprovincial railway, CN's railway operations fall under the legislative authority of the federal government.

30Subsection 92(10)(c) of the Constitution Act, 1867 provides that, even when the work and undertaking is wholly situated within the province, if it is declared by the Parliament of Canada to be for the general advantage of Canada then it is within exclusive federal authority. The CN Commercialization Act, S.C. 1995, c.24 expressly identifies the entirety of CN's "works" and its subsidiary enterprises as being "for the general advantage of Canada":

16(1) The railway and other transportation works in Canada of CN, of every subsidiary of CN and of every corporation formed by any consolidation or amalgamation of any two or more of those corporations are hereby declared to be works for the general advantage of Canada.

31In addition, the safety of CN's railway operations is a matter that comes under the purview of the Railway Safety Act, R.S.C. 1985 c.32 (4th suppl). Section 26.1 of this Act confers CN with lawful authority to control who may enter on its rail line lands. By attempting to challenge CN's oversight of who may enter on its land or operate on its rail line, the applicant is seeking to have this provincial Tribunal exercise authority over a matter that is clearly designated by this federal Act to be within CN's power.

32The test for whether provincial legislation can apply to a federal undertaking pursuant to the doctrine of interjurisdictional immunity is whether the application of the provincial law would impair a vital or essential part of the federal undertaking: see Canadian Western Bank v. Alberta, 2007 SCC 22, [2007], 2 S.C.R. 3. The control of its property and who may enter or operate on its rail lines is a matter going to the core of CN's business and a necessary component of its rail operations as a matter of safety. I find that applying the Code to CN and its decision-making power over who may enter on its railway lines would have the affect of impairing an integral part of CN's operations and works.

33The business of CN, as related to this Application, is to allow for the access and use of its rail lines and to supply locomotive engineers to Bombardier for the purposes of servicing GO Transit's commuter system in the GTA corridor. I conclude that, notwithstanding that the Application affects a local rail service, CN's decisions about who can be present on and operate its rail tracks are subject to exclusive federal authority as per the Constitution Act, 1867, the CN Commercialization Act and the Railway Safety Act and, consequently, the Code does not apply to this federal enterprise and its essential rail operations.

34Since the Code is applicable only to matters that fall within provincial sphere and does not apply to federal works and undertakings where it would impair a core part of that undertaking, CN does not come under the purview of the Code in this case. Only the CHRC has the power to deal with human rights matters that fall under federal jurisdiction. Accordingly, in the circumstances of this case, the Tribunal does not have jurisdiction over the allegations as against CN and, as a consequence, CN must be removed as a respondent party from this Application.

Jurisdiction Over the Claims Against Bombardier

35The applicant submits that, even if the Tribunal determines that the Application against CN is under federal authority, Bombardier remains under the Tribunal's jurisdiction. The applicant alleges that Bombardier has treated her differently in its response to CN's ban compared to its treatment of male employees. The applicant further alleges that Bombardier has failed to accommodate her with CTO work on a growing number of rail lines that are not owned by CN.

36Bombardier takes the position that it cannot provide the applicant with CTO work because CN will not revoke the ban and, since CN is outside the jurisdiction of the Tribunal, any allegations regarding CN's ban are similarly outside the Tribunal's reach. In the alternative, Bombardier argues that returning the applicant to a CTO job would constitute undue hardship because of the interconnectedness of railway systems it must comply with the CN ban.

37Recently, the Supreme Court of Canada confirmed that that the "operative presumption" of labour relations is provincial jurisdiction and that presumption is only displaced if it can be shown that a federal core forms an integral part of the nature, operations and habitual activities of the entity: see NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union, 2010 SCC 45 ("NIL/TU,O") at para. 18.

38The analytical framework delineated by the Supreme Court in NIL/TU,O, above, involves a "functional test", which first examines the nature, operations and habitual activities of the entity to determine whether it constitutes a federal undertaking. Only if first step is inconclusive and points to a federal enterprise, then the second step asks whether the provincial regulation of that entity's labour relations would impair the "core" of the federal head of power at issue. The impugned activity in this case is Bombardier's role as an employer of the applicant and the terms and conditions of her work. There is no disagreement that applicant's employment relationship with Bombardier would ordinarily be provincially-regulated.

39In NIL/TU,O, above, the Supreme Court considered whether the labour relations of a provincially-regulated, exclusively First Nations child services agency in British Columbia, fell within provincial or federal jurisdiction. The employer argued, in part, provincial regulation of its labour relations would impair the "core" of federal jurisdiction over "Indians" under section 91(24) of the Constitution Act, 1867. The majority of the Court rejected that argument and held that, even though the Native community for whom the agency was created was federally-regulated, the employer was a provincially-regulated organization because the essential nature of the operation was to provide children services, a matter within provincial sphere.

40While the operational reality of GO Transit's service is that it is a multi-party venture with intermingling federal, provincial and regional elements, the essential activity of Bombardier's business in the present circumstances is to provide services for GO Transit's commuter system in the GTA and surrounding area. The venture that is the subject of this Application does not exist beyond the limits of the province. Although some of the rail lines used by Bombardier and GO Transit are part of a CN's national network of rail lines, there is nothing inter-provincial about Bombardier's services for GO Transit and its employment relationship with the applicant. As such, I find the fact that CN-owned property may be implicated in the matters in dispute between the applicant and Bombardier does not oust provincial jurisdiction over the labour relations issues.

41In summary, when one looks at the normal and habitual activities of Bombardier with respect to GO Transit, Bombardier's trains and personnel are only being utilized to service the regional commuter system. I am unable to conclude that a federal core prevails in Bombardier's business and functions with respect to GO Transit's commuter rail service. I am not persuaded that the functional test analysis points to a federal undertaking. I find, therefore, Bombardier's activities and decisions with respect to how it manages its employees are subject to provincial regulation and, consequently, the Application as against Bombardier is within the Tribunal's jurisdiction.

42I do not accept Bombardier's argument that the circumstances of this Application are parallel to the facts in MacDonald v. MaxSys Consulting, 2010 HRTO 584. As stated in MaxSys, the onus is on the party who seeks to invoke an exception to provincial competence over labour relations: see McElrevy v. BC Corps of Commissionaires, 2004 BCHRT 160 at para. 10. The employee in MaxSys was found to be performing duties solely for a federal agency and assisting with federal work. In the current case, the applicant is employed by Bombardier, a provincially-regulated business, to work as a CTO for GO Transit, a local commuter service.

43Further, I find that the circumstances of this case are unlike Fleury v. Northstar Frontier Services, 2010 HRTO 909. It is not the situation that CN has contracted out part of its functions to another party such that the works and character of the third party become part of the federal undertaking as well. Rather, Bombardier is an independent provincial enterprise that has permission to access CN's rails lines. Thus, at this stage, I find that applying the Code to Bombardier with respect to employment of the applicant does not impair a vital or essential feature of any federal operations and, therefore, this Tribunal has jurisdiction to consider these allegations. It may be open to the parties to reopen the jurisdiction issue at a hearing of the Application depending on the evidence and the submissions on the merits and remedy.

44Although there is no doubt that CN imposed the ban, this fact alone does not convert Bombardier's role as the applicant's employer, with authority over where she can work and alleged influence over the ban, into a federal matter. While Bombardier disputes that it has any involvement in CN's decision to institute and continue the ban against the applicant, this remains a contested matter. The applicant alleges that she is experiencing discriminatory treatment in this regard and further alleges that Bombardier has the power to resolve the discrimination by advocating to have the ban lifted or accommodating her on non-CN rail lines. In sum, Bombardier has failed to satisfy me that the allegations made against it, which relate to its response to the ban and its alleged failure to provide the applicant to CTO work on non-CN lines, fall within federal jurisdiction

45Bombardier argues that, in the alternative, returning the applicant to a CTO job would constitute undue hardship because of the interconnectedness of railway systems it must comply with the CN ban. This issue engages the merits of the applicant's allegations and Bombardier's defence and, as such, can only be addressed at the hearing of the Application.

46In order to preserve her rights, the applicant has now filed a complaint against CN with the CHRC and, in this respect, Bombardier contends that CHRC will likely accept jurisdiction over it despite its provincial status because it agrees to attorn to its jurisdiction. Although it would be preferable to avoid multiple proceedings, I find no basis in law for Bombardier's position that it can attorn to CHRC jurisdiction. As stated in Fisher v. Polymer Distribution, 2009 HRTO 146 at para. 8, "[t]he law is well settled that the behaviour or consent of parties cannot confer jurisdiction on a statutory body." Further, the fact that Bombardier may seek to voluntarily attorn to the authority of the CHRC does not nullify or render inapplicable this Tribunal's valid jurisdiction over it.

47I am satisfied that the Application as against Bombardier falls within this Tribunal's jurisdiction and this Tribunal can deal with the allegations with respect to whether or not Bombardier has any involvement or influence regarding CN's ban and whether the applicant can be returned to a CTO position on non-CN lines. The Application will continue as against Bombardier in this regard.

Section 45.1

48Section 45.1 of the Code grants the Tribunal discretion to dismiss an application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application

49The Tribunal has interpreted section 45.1 of the Code as requiring consideration of a two-part test: (1) whether there was another "proceeding", and (2) if so, whether the proceeding "appropriately dealt with" the substance of the Application. The Tribunal's jurisprudence has explained that section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere: see Campbell v. Toronto District School Board, 2008 HRTO 62.

50The Tribunal has found that the Supreme Court of Canada's reasoning in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 applies to the interpretation of section 45.1 of the Code: see Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297. In Figliola, supra, the Supreme Court noted that the re-litigation of issues that have been previously decided in an appropriate forum may undermine the public's confidence in the fairness and integrity of the judicial system by creating inconsistent results and unnecessarily duplicative proceedings.

51The Tribunal has held that, for the purposes of section 45.1 of the Code, a "proceeding" need not involve a hearing or an opportunity to make oral submissions and may constitute a settlement: Dunn v. Sault Ste. Marie (City), 2008 HRTO 149. In Dunn, supra, the Tribunal determined that a grievance settlement was a "proceeding" that comes within the ambit of section 45.1:

I find that s. 45.1 may apply to settlements of proceedings under other statutory schemes. This conclusion is supported by both the wording and the purposes of s. 45.1. The provision refers to a "proceeding" having "dealt with" the matter, rather than using narrower words that would only encompass adjudication like "decision" or "reasons". More important, the purpose of avoiding the duplication of proceedings and ensuring finality in litigation would be severely undercut if the section applied only to decisions. Most litigation ends in settlement. To be effective, settlements must be final, since otherwise the parties would have no incentive to make an agreement to end litigation. An interpretation of s. 45.1 that did not cover settlements would discourage parties from working to resolve human rights proceedings without recourse to litigation.

For the reasons discussed in Dunn, supra, I am satisfied that the January 2010 settlement of the applicant's grievance is a "proceeding" within the meaning of section 45.1 of the Code.

52Moving to the second branch of the test, the onus falls on the party seeking to rely upon section 45.1 to establish that the other proceeding "appropriately dealt" with the substance of the Application. Accordingly, for the Application to be dismissed at this stage, Bombardier must show that the January 2010 grievance settlement appropriately dealt with the substance of the applicant's human rights allegations.

53The parties and the intervenor agree that they voluntarily entered into a binding settlement that resolved the issues of unfair discipline and frustration of contract as alleged in the applicant's grievance. The parties and the intervenor also agree that paragraph 2 of the Minutes of Settlement expressly contemplates that the agreement did not resolve the issue of the CN ban and its impact into the future. The applicant asserts that her concerns regarding Bombardier's alleged discriminatory inaction in having the ban lifted and failure to be accommodated on non-CN rail lines remain outstanding.

54The grievance documentation indicates that the focus of the grievance process was about events leading to the frustration of contract discharge. The bulk of the grievance describes allegations of inadequate investigation into the November 29, 2008 incident, improper discipline, an irregular change in Bombardier's citation of certain rule violations and the invalidity of the frustration of contract termination.

55In the Application narrative, along with her concerns regarding being disciplined and dismissed which she now accepts were fully resolved, the applicant alleges that she was treated differentially by Bombardier not sufficiently advocating for the ban to be lifted and by not being returned to a CTO job on non-CN lines.

56Based on the content of the grievance and the parties' submissions, I see no indication that the grievance or the settlement in any way contemplated the propriety of Bombardier's response to CN's ban or resolved future events, including the acquisition of new non-CN rail lines.

57The parties contest Bombardier's capacity to exert influence over CN and the parameters of the ban. There is no evidence before me that any aspect of the grievance raised the sufficiency of Bombardier's efforts to have the ban lifted, in particular given the parties' agreement that the continuing effects of the CN's ban remained outside the scope of the settlement. As such, I do not accept that the resolution reached through the grievance process was determinative of the applicant's claims that Bombardier discriminated against her in its efforts (or lack thereof) with respect to having the ban revoked after January 2010 when the settlement took effect.

58The applicant submits that, since the time of the grievance settlement, GO Transit has expanded its services and acquired more rail lines. As such, the applicant alleges there are an increasing number of rail lines that CN no longer owns where she could be assigned to work as a CTO. Although Bombardier argues that even the new GO rail lines intersect with CN's tracks, Bombardier acknowledged that paragraph 2 of the Minutes of Settlement sets out certain issues between the parties that were not fully resolved. Paragraph 2 notes that issue of the applicant's re-employment as a CTO on rail lines that are "no longer under CN's control" remained an outstanding matter. As such, it appears that Bombardier's alleged failure to provide the applicant with alternate conductor work on rail lines no longer under CN's control since January 2010 is a live issue.

59At the hearing, counsel for Bombardier submitted that she was advised by her client that the applicant's concerns regarding assignment as a CTO on non-CN lines in existence at that time was discussed as part of the grievance settlement. Counsel submitted that, in light of the parties' discussions, the viability of accommodation on new non-CN lines should also be treated as resolved by the Minutes of Settlement.

60I am unable to accept Bombardier's position that the parties' oral discussions surrounding the settlement disposed of the applicant's allegations. In Brown v. Primary Response Inc., 2012 HRTO 424, this Tribunal noted that the parol evidence rule stipulates that a parties' intentions and verbal assurances cannot be imputed into the written word of an agreement:

The Tribunal cannot construe the written provisions of a settlement to include the oral conditions as alleged by the applicant. As stated in Ihasz v. Ontario (Revenue), 2011 HRTO 1991, a party's beliefs and intentions, as well as the surrounding verbal understanding of a contractual agreement, constitute extrinsic evidence which, in accordance with the parol evidence rule, cannot be considered when interpreting the meaning of the words of the contract. The Tribunal cannot inject the parties' alleged verbal assurances and understandings into the written word of the agreement.

61Although the discipline and frustration of contract discharge were fully settled, there is no basis upon which I can conclude that the settlement also contemplated and resolved all of the applicant's claims of discrimination with respect having the ban lifted and failure to be assigned CTO work on rail lines not owned by CN since January 2010. There is nothing before me that indicates the grievance process addressed these allegations regarding the future affects of the ban and the human rights issues of differential treatment, accommodation and undue hardship.

62In light of the parties' agreement that the CN and its ongoing impact were not resolved, it cannot be concluded that the grievance settlement appropriately dealt with the substance of the Code-related allegations regarding Bombardier's efforts to have the ban lifted and its failure to return the applicant to CTO work on rail lines no longer owned by CN since January 2010. Accordingly, the request for dismissal under section 45.1 with respect to these allegations is denied.

CONCLUSION

63The Tribunal orders as follows:

i. The Application as against CN is dismissed;

ii. CN is granted intervenor status;

iii. The parts of the Application as against Bombardier regarding the discipline and the frustration of contract termination are dismissed pursuant to section 45.1 of the Code;

iv. The Tribunal will proceed with the parts of the Application that make allegations regarding differential treatment with respect to Bombardier's efforts to have the ban lifted and Bombardier's alleged failure to provide the applicant with CTO work on rail lines no longer owned by CN since January 2010.

64I am not seized of this matter.