Abdalla Mohamed Ali v. AVIS Budget Group and Ajmer Pabla, 2012 HRTO 2267

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abdalla Mohamed Ali

Applicant

-and-

AVIS Budget Group and Ajmer Pabla

Respondents

-and-

United Food and Commercial Workers, Local 175

Intervenor

INTERIM DECISION

Adjudicator: Paul Aterman

Date: December 4, 2012

Citation: 2012 HRTO 2267

Indexed as: Ali v. AVIS Budget Group

APPEARANCES

Abdalla Mohamed Ali, Applicant

Harry Kopyto, Representative

AVIS Budget Group and Ajmer Pabla, Respondents

Jordan Winch, Counsel

United Food and Commercial Workers, Local 175, Intervenor

Catherine Davis, Representative

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. In an Interim Decision, 2012 HRTO 448, the Tribunal deferred consideration of this Application pending the conclusion of a grievance arbitration.

2On April 17, 2012, the arbitrator issued an award upholding the applicant’s termination by the corporate respondent. In a Case Assessment Direction dated July 11, 2012, the Tribunal directed a teleconference hearing on whether the Application should be dismissed pursuant to s.45.1 of the Code.

3The applicant’s union, Local 175 of the United Food and Commercial Workers, filed a request to intervene on October 9, 2012. Neither party took a position on the union being granted intervenor status.

submissions

4Prior to the hearing, the applicant’s representative advised the Tribunal and parties that the applicant had initiated an application for judicial review of the arbitrator’s decision. At the hearing he argued that this Application should be further deferred on the grounds that if the applicant succeeds on judicial review and the grievance is to be heard again by an arbitrator, the Tribunal would again defer.

5The respondents argued that the Tribunal should no longer defer and should determine whether the Application should be dismissed under s.45.1, as the applicant has no standing to bring an application for judicial review of an arbitration award. The respondents contend that the arbitrator’s decision should be treated as final in circumstances where neither party to the arbitration has sought judicial review.

6The union took no position on the issue of a further deferral.

analysis and decision

Union request to intervene

7As stated by the Tribunal in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, at para. 13:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

8In this case I find that it would fair, just and expeditious to permit the union to intervene in this Application. The extent of the union’s participation as an intervenor in any future proceedings will be determined by the Vice-chair or Member who presides over those proceedings.

Deferral

9I am of the view that it is appropriate to continue to defer this Application until the judicial review proceedings have been finalised. It is open to the respondents to move to have the Divisional Court dismiss the judicial review application on the issue of standing, and by letter dated November 22, 2012 to the parties and the Tribunal the respondents have signalled their intent to do so. In British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, the Supreme Court of Canada noted at paragraph 38:

When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies.(emphasis added)

10It is not for the Tribunal to decide whether a pending application for judicial review has been properly brought. That is a matter for the Divisional Court. While there is a pending judicial review application, the grievance proceedings are not final. For these reasons, the Application will be deferred.

order

11The union is granted intervenor status.

12The Application will be deferred pending the completion of the judicial review application.

13The parties’ attention is directed to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the judicial review application.

14I am not seized.