HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jesse Burton
Applicant
-and-
Northstar Aerospace (Canada) Inc.
Respondent
-and-
CAW-TCA Canada, Local 444
Intervenor
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Burton v. Northstar Aerospace (Canada) Inc.
1This is an Application filed on December 21, 2011, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The purpose of this Interim Decision is to consider the Request to Intervene made by the applicant’s union, the CAW-TCA, Local 444 (the “union”), and to deal with the issue of whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of another related proceeding.
Background
2The applicant has a work-related upper back condition. The applicant and the respondent were co-operating in a return to work program. On June 23, 2011, the respondent terminated the applicant’s employment following surveillance. On the same date, the applicant filed a grievance.
3The grievance has been referred to an arbitrator and February 13, 2012, was scheduled as the first day of the hearing. According to the applicant, further dates are scheduled for June and July 2012.
4According to the applicant, the collective agreement that recognized the union as the bargaining agent for the respondent’s employees was not ratified until May 25, 2011, and was not “officially executed” until September 20, 2011.
Deferral Request
5The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. The facts and issues raised by this Application are part of grievance processes that are still in progress. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.
6The applicant is concerned that the arbitrator might not have jurisdiction to deal with the events in May and June 2011 because the collective agreement was not executed until September 2011. I note that the copy of the collective agreement forwarded by the applicant indicates that it is was effective May 26, 2011, which was before the applicant’s employment was terminated. Article 33 of the collective agreement provides that it “will become effective as of the date of ratification”.
7The termination of the applicant’s employment is central to the Application. It is also an issue that an arbitrator is now seized with. Even if the arbitrator does not have jurisdiction to deal with events prior to May 26, 2011, it would not be sensible for the Tribunal to deal with any aspect of the Application until the central issue has been resolved. In these circumstances deferral is appropriate.
8If after the grievance procedure has been completed the applicant believes that the issues raised in the Application have not been resolved, he may apply to have the Application activated. The process to be followed is set out in Rules 19 and 14 of the Tribunal’s Rules of Procedure.
Request to Intervene
9The union seeks to intervene in accordance with Rules 11.2 and 11.3 of the Tribunal’s Rules of Procedure. The union represents the applicant in the ongoing grievance that arises out of the facts that give rise to this Application. It has a significant interest in the outcome of the Application, including the remedial orders requested by the applicant. The union’s request to intervene is granted. Given the Tribunal’s decision to defer this Application, the extent and the nature of the union’s participation in the proceeding can be determined when and if the matter is brought back before the Tribunal.
Order
10The Application is deferred pending the conclusion of the grievance procedure.
11I am not seized of this matter.
Dated at Toronto, this 16th day of April, 2012.
“Signed by”
Brian Cook
Vice-chair