HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ronald Enns
Applicant
-and-
Kellogg Canada Inc.
Respondent
Bakery, Confectionary, Tobacco Workers & Grain Millers, Local 154-G
Intervenor
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Enns v. Kellogg Canada Inc.
APPEARANCES
Ronald Enns, Applicant
Sarin Priya, Counsel
Kellogg Canada Inc., Respondent
Timothy Lawson, Counsel
Bakery, Confectionary, Tobacco, Workers and Grain Millers, Local 154-G, Intervenor
J. Craig Morrison, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of age and disability.
2This Interim Decision deals with the Unions Request to intervene and the respondent’s Request to dismiss pursuant to section 45.1 of the Code.
Request to Intervene
3The applicant opposes the Union’s Request to intervene for a number of reasons including that it will lengthen and complicate the proceedings, the findings made in the Application will not have a direct impact on the Union and that any documents are already in the possession of the parties. The applicant relies on Upchurch v. MTI Mechanical Trade Industries, 2010 HRTO 1323.
4Having reviewed the pleadings it is clear that the Union is an important part of the factual matrix of this matter. The Union as the applicant’s bargaining agent was repeatedly involved in attempts to accommodate the applicant and communications with the respondent. Though the applicant has not named the Union as a party he alleges that the Union was unsupportive, and there is even a heading entitled “Lack of Union Representation”. In these circumstances, it would be unfair to deny the Union participatory rights. Despite the applicant’s opposition, in light of the applicant’s allegations, the Union has a significant interest in this matter and I grant its Request to intervene.
Request to Dismiss
5Section 45.1 of the Code provides as follows:
45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
6In its Response, the respondent Requests the dismissal of the Application on the basis that another proceeding has appropriately dealt with the substance of the Application. The respondent takes the position that a number of grievances which have been filed throughout the relevant time period have appropriately dealt with some of the allegations in the Application.
7The applicant opposes the Request to dismiss on the basis that the grievances were withdrawn.
8It is clear having read the materials of all the parties that the majority of these grievances have been withdrawn by the Union. It does not appear that these grievances were either resolved or referred to arbitration.
9The Tribunal has repeatedly found that a withdrawn grievance does not satisfy the requirements of section 45.1. In the cases of Shannon v. Renfrew (County) 2010 HRTO 930, and Dupuis v. Religious Hospitalliers of St. Joseph of Cornwall, 2010 HRTO 1079, the Tribunal declined to exercise its discretion to dismiss applications pursuant to section 45.1.
10Having considered the matter, the respondent’s Request to dismiss is denied.
Order
11The Tribunal orders:
a. The Bakery, Confectionary, Tobacco Workers & Grain Millers, Local 154-G, is granted Intervenor status, and the style of cause shall be immediately amended to reflect this change; and
b. The respondent’s Request to dismiss the Application pursuant to section 45.1 is denied.
12I am not seized.
Dated at Toronto, this 2nd day of August, 2013.
“signed by”
Geneviève Debané
Vice-chair