HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Stephen Janes
Applicant
-and-
Northstar Aerospace (Canada) Inc.
Respondent
-and-
CAW-TCA Canada, Local 444
Intervenor
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Janes 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 bilateral work-related wrist condition. The applicant and the respondent were co-operating in a return to work program sponsored by the Workplace Safety and Insurance Board. In March 2011, the respondent suspended the program. On August 4, 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 April 4, 2012, was scheduled as the first day of the hearing.
4According to the applicant, the collective agreement that recognized the union as the bargaining agent for the respondent’s employees was not ratified until after March 2011, although it had been ratified by the time his employment was terminated on August 4, 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 March 2011. However, there is no dispute that the arbitrator will have jurisdiction to deal with the termination of the applicant’s employment. This issue 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 the earlier events, 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.
7If 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
8The 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
9The Application is deferred pending the conclusion of the grievance procedure.
10I am not seized of this matter.
Dated at Toronto, this 16h day of April, 2012.
“Signed by”
Brian Cook
Vice-chair