Lopes v. Group G4S Secure Solutions (Canada) Ltd., 2014 HRTO 768

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jose Lopes

Applicant

-and-

Group G4S Secure Solutions (Canada) Ltd.

Respondent

-and-

United Food and Commercial Workers’ International Union, Local 333

Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend

Date: May 29, 2014

Citation: 2014 HRTO 768

Indexed as: Lopes v. Group G4S Secure Solutions (Canada) Ltd.

APPEARANCES

Jose Lopes, Applicant Self-represented

Group G4S Secure Solutions (Canada) Ltd., Respondent Christopher McClelland, Counsel

UFCW Local 333, Intervenor Laurie Kent, Counsel

1This Interim Decision addresses the following three issues:

1. The request by the applicant to reactivate his Application;
2. The request by the respondent to dismiss pursuant to s. 45.1 or the doctrine of abuse of process; and
3. The request by the applicant’s bargaining agent to intervene.

Decision

Reactivation

2This Application was deferred in an Interim Decision issued on November 2, 2012 (2012 HRTO 2093). The applicant subsequently filed a Request for an Order During Proceedings, asking to re-activate the Application now that the grievance process to which the Application was deferred has concluded. The respondent does not object to the matter being reactivated.

3Given that the preconditions for reactivation are met, the Tribunal will reactivate this Application.

Section 45.1/Abuse of Process

4In its Response to the Request to reactivate, the respondent submits that the applicant’s grievance was “settled” and that this Application should, accordingly, be dismissed pursuant to s. 45.1 or as an abuse of process. Section 45.1 states:

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.

5The respondent noted that the applicant’s union, the United Food and Commercial Workers Local 333 (“Local 333”) initially referred the applicant’s grievance to arbitration, but then ultimately decided to not pursue the arbitration. At this point, the respondent viewed the grievance as “settled.” The respondent noted that the applicant challenged Local 333’s actions by filing a Duty of Fair Representation application with the Ontario Labour Relations Board (“OLRB”), which was ultimately dismissed on April 14, 2014.

6It cannot be said, however, that the substance of the Application has been dealt with in another proceeding in the absence of a decision or settlement. Moreover, the application before the OLRB does not assist the respondent’s argument that the Application before this Tribunal is an abuse of process. The Vice-Chair of the OLRB does not make findings of fact with respect to the respondent’s conduct or the merits of the Application before this Tribunal in his Decision. Indeed, he explicitly declines to do so. At para. 10, the Vice-Chair states:

Section 74 is concerned with the conduct of a trade union. Thus, to the extent that the applicant makes allegations in his complaint about G4S violating his human rights, those complaints are not caught by section 74 of the Act.

7The respondent’s request to dismiss this Application under s. 45.1 or as an abuse of process is denied.

Intervention

8Prior to the matter being deferred, Local 333 filed a Request to Intervene on September 17, 2012. This was not opposed by the parties in the time period given for Responses to the Request. In the Interim Decision deferring this matter, the parties were advised that the Request to Intervene would be addressed if the matter was reactivated.

9As noted in the Tribunal’s case law, a union nearly always has an interest in an application brought by a member of one of its bargaining units about his or her employment and that, absent exceptional circumstances, will be granted intervention status when it so requests it. Indeed, a new Rule has recently been added to the Tribunal’s amended Rules of Practice which now permits a bargaining agent to intervene simply by filing a Request (Form 28):

11.14. The bargaining agent for an applicant who has filed an Application about his or her employment may intervene in the Application by filing a Notice of Intervention by Bargaining Agent in Form 28.

10Accordingly, Local 333 is granted leave to intervene. The scope of Local 333’s intervention will be determined by the adjudicator hearing the matter.

order

11In summary, I have made the following orders:

a. This Application is reactivated;

b. The respondent’s request to dismiss this Application under s. 45.1 or as an abuse of process is denied; and

c. Local 333 is granted leave to intervene. The scope of Local 333’s intervention will be determined by the adjudicator hearing the matter.