Ontario Human Rights Commission v. Wayne Locke, 2004 HRTO 12

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Wayne Locke

Complainant

-and-

Her Majesty the Queen in Right of Ontario

as represented by the Minister of Community and Social Services

Respondent

INTERIM DECISION

Adjudicator: Patricia E. DeGuire

Date: September 24, 2004

Citation: 2004 HRTO 12

Human Rights Tribunal of Ontario

400 University Avenue, 7^th Floor

Toronto ON M7A 1T7

Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946

TTY (416) 314-2379 / 1-800-424-1168

INTRODUCTION

1Mr. Wayne Locke (the “Complainant”) filed a complaint with the Ontario Human Rights Commission (the “Commission”) on September 20, 2001. In his complaint, he alleged that a specific Ontario Disability Support Program office (“ODSP”) contravened his rights as protected by section 1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the Complainant asserts that he had claimed and received benefits from the Workplace Safety and Insurance Board (the “WSIB”) because he had sustained a work-related injury. Subsequently, he applied for benefits under the ODSP and was denied because he had received benefits from WSIB. He asserts that ODSP does not impose the same restrictions on disabled persons who claim and receive benefits under the “Ontario Hepatitis C Assistance Plan, the Helpline Reconciliation Model Agreement, the Provincial/Territorial Assistance Program Agreement, etc.” (the “Complaint”).

2The Tribunal received the referral of the subject-matter of the Complaint on August 12, 2003. The Tribunal held its Initial Conference Call on September 11, 2003. Subsequently, it held a Pre-Hearing Conference call (the “PHC”) on December 10, 2003. At that time, dates were set for filing and serving pleadings and another Pre-Hearing, which was scheduled for April 14, 2004.

3In the interim, the Tribunal received a request from the Office of the Worker Adviser (the “OWA”) requesting that it be granted intervenor status in this matter. The Tribunal directed the OWA to bring a motion, by written submissions. Also, the Tribunal informed the OWA and the parties that it would deal with the matter at the PHC scheduled for April 14, 2004.

4At the beginning of the PHC on April 14, 2004, the Tribunal issued its decision orally, on the motion. These are the Tribunal’s Reasons for that Interim Decision.

PURPOSE FOR INTERVENING

5At the onset, OWA asked the Tribunal to grant it “full participatory rights, including the right to submit evidence and cross-examine witnesses”; to act as a “friend of the Court,” to provide assistance, which would not be available otherwise; and leaving open the possibility, it may make oral argument to the Tribunal, according to Rule 18 of the Tribunal’s Rules of Practice.”¹

6OWA states that it has a significant interest in the issues; and its intervention would not unduly delay or prejudice the rights of the parties. OWA says it is especially important to grant it intervenor status because the Complainant is not represented.

7OWA seeks to make oral or written submissions on the following issue, among other things:

The proper characterization of a non-economic loss (NEL) award, why a NEL payment should not be characterized as an asset or income and address any broader issues that may arise on the intersection between the Ontario Disability Support Program and the Workplace Safety and Insurance scheme.²

DECISION

8The motion is denied.

EVIDENCE SUPPORTING THE APPLICATION FOR INTERVENOR STATUS

9To support its application for intervenor status, the OWA has adduced an affidavit affirmed by Cynthia Trower dated March 30, 2004. Ms Trower has worked at the OWA since 1992, first as a legislative interpretation specialist. Currently, she is General Counsel. Ms Trower believes her experience has enabled her to “have a very well developed sense of the issues that affect a broader range of injured workers.” She believes “that a significant number of injured workers find themselves in a situation in which they are granted a NEL benefit, but denied a wage loss benefit.”³

10Ms Trower believes that there are significant public policy implications in this case. Also, she states: To make a distinction between a pain and suffering award obtained in a court and a non-economic loss award obtained from the WSIB seems to fly in the face of this historic compromise.” She states: “Accordingly, I believe the question of whether the ODSP scheme has violated Mr. Locke’s human rights cannot, from a public policy perspective, be looked at in a vacuum. A full understanding of compensation law in Ontario is vital and the OWA is in the best position to provide this.”⁴

11Other relevant parts of Ms Trower’s affidavit are reproduced below, verbatim:

In 1992 the OWA became an agency of the Ministry of Labour. The OWA is funded through the Workplace Safety and Insurance Board (WSIB) insurance fund, with an annual budget of approximately $8.2 million: (para. 3).

We receive over 14,000 new requests for service each year, from over 11,000 injured workers. At any given time, our staff are [sic] representing around 3,000 workers in Workplace Safety and Insurance Board (“the Board”) or Workplace Safety and Insurance Appeals Tribunal (‘the WSIAT”) appeals: (para. 4).

We also provide information and education sessions to MPP constituency assistants, injured workers and those in the community who assist injured workers: (para 5).

We have 84 front line staff in four regions. This includes 15 local offices. OWA staff also visit [sic] some other centres where we do not have an office to meet injured workers who cannot travel to our offices (these are called “clinics”): (para. 6).

Our Central Client Services Unit (CCSU), of which I am manager, provides legal advice and representation on complex cases and educational support to OWA’s front line staff and, to a lesser extent, other injured worker representatives: (para. 7).

OWA services are free and confidential. We strive to focus our resources on services to workers who most need our help. We would not seek to intervene in any case, either within the workplace safety and insurance system or externally, unless we felt that it was a broad issue that affected a significant group of workers: (para. 9).

The OWA has intervened in numerous cases before the WSIAT and its predecessor, the Workers’ Compensation Appeals Tribunal (WCAT). These interventions have involved: a case that considered whether the definition of accident under the WCA could and should include a disablement, a leading case on pension assessment appeals, a case that considered the interaction between the Mental Health Act and the WCA, a case that considered whether the Workers’ Compensation Board had the jurisdiction to award interest on delay benefits, a case that considered whether the WSIB has standing to request a reconsideration of a WSIAT decision, a case that is considering whether the WSIB’s return to work policies are consistent with the Act and a case that is considering whether shift work could be a significant contributing factor to a sleep disorder and compensable under the WSIA. These last two cases are currently in progress: (para. 10).

The OWA has also been involved in various consultations on WSIB policies. These have included submissions: to the WSIB’s Chronic Pain Policy Advisory Panel; regarding the treatment of Canada Pension Plan Disability Benefits in the workplace safety and insurance scheme; dealing with what constitutes “policy” for the purpose of section 126 of the WSIA; and on the WSIB’s Traumatic Mental Stress Policy. We have also prepared submissions to the Ontario Human Rights Commission on its Accommodation Consultation document. In addition, in December 1999 we made submissions to the Law Society of Upper Canada on the regulation of paralegals: (para. 11).

The OWA is involved with regular consultation at the WSIB and WSIAT through various system partner committees. For example, the OWA Director has a seat on the WSIB’s Consultation Advisory Group (CAG). This committee, which includes both worker and employer representatives, meets regularly with the WSIB to discuss ongoing policy issues and is instrumental in identifying which new or amended policies need to be referred out for broader consultations. The OWA is also actively involved in the Worker Stakeholder committee. This is a meeting of worker side representatives and senior officials at the WSIB, including its Chair, which pursues issues of practice, policy and law reform: (para. 12).

In addition, the OWA is involved with injured workers’ groups and community organizations. For example, we maintain strong ties to the Ontario Network of Injured Workers Group (ONIWG). ONIWG’s membership is composed of injured workers and it provides the injured worker community with leadership, education, information and basic advisory services. The OWA is also very involved with community projects such as the Threads of Life, which is an association for workplace tragedy family support: (para. 13).

Given our extensive experience and involvement in the workers’ compensation/workplace safety and insurance system, I believe that OWA is uniquely positioned to provide the broader perspective of a particular disadvantaged group: permanently impaired injured workers who are eligible for non-economic loss (NEL) benefits under the WSIA. We can assist the Tribunal in understanding the workplace safety and insurance scheme, the way it affects injured workers and the way benefits are treated and understood by the WSIB and the WSIAT: (para. 14).

THE PARTIES’ POSITIONS

The OWA (Moving Party)

12The OWA’s position is set out in the above excerpts from Ms Trower’s affidavit. Succinctly, the OWA position is that the issue before the Tribunal “is essentially a legal one.” Based on its many years experience as an advocate and educator with respect to disabled workers, it should be granted intervenor status as a friend of the Tribunal, especially because the Complainant is not represented. It seeks to provide assistance, at a minimum, by written submissions on the general issue concerning the relation between the Ontario Disability Support Program and the Workplace Safety and Insurance scheme, and more specifically, why a non-economic loss award ought not to be classified as an asset or income. However, it says because it is “uniquely” qualified as an expert in workers’ compensation law, it can assist the Tribunal in understanding the workplace safety and insurance scheme.

13The OWA intends to provide such information to the Tribunal by adducing documentary or oral evidence and possibly oral argument and other means advised by it, if the Tribunal so allows. It believes that it is “uniquely positioned to provide the broader perspective of a particular disadvantaged group: permanently impaired injured workers who are eligible for non-economic loss (NEL) benefits under the WSIA.” The OWA believes that the help it can provide the Tribunal is not available otherwise. It says it can provide that help without causing undue delay or prejudice the rights of the parties.

14In addition, OWA says it has “a significant interest in the issues,” i.e., to ensure that other “external agencies” properly classify non-union injured workers’ non-economic loss so that they are not denied benefits.

The Commission’s Position

15The Commission keenly supports the OWA’s motion. The Commission believes that likely, the OWA “will make a useful contribution to the resolution” of this matter because the issues and the determination of the issues are of a public nature, which would affect more than just the parties to the dispute. Thus, “leave should more readily be granted.” Besides, “the remedy sought by [it] includes statutory amendment.” (Commission’s submissions dated April 5, 2004).

16The Commission states that OWA has “extensive knowledge and significant expertise in the subject-matter of this Complaint as well as technical expertise in its own legislation, regulations, jurisprudence, policies and practices. Thus, OWA “would be of great assistance to have as an intervenor…[s]uch assistance would clarify issues and sharpen the discussion, and indeed, might save the parties time at the end of the day.”

The Complainant

17The Complainant adopts the Commission’s position.

The Respondent

18The Respondent’s counsel advised the Tribunal that he was instructed to not file a response to the motion.

ANALYSIS

19In this case, the Tribunal bases its analysis on the two types of intervention possible within its jurisdiction, namely: non-party intervenor status within the purview of the Tribunal’s Rules of Practice, November 1996 (the “Rules”); and a “friend” of the Tribunal.

20In its analysis, the Tribunal has considered the Code, its enabling statute; the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (the “SPPA”); its Rules; and its jurisprudence.

21In its request for intervenor status, OWA has asked the Tribunal to grant it wide berth as an amicus curiae intervener. Indeed, OWA states that it recognises there could be limitations to its intervention. However, at para. 26 of its factum OWA states:

We submit that the nature of the issue is essentially a legal one and most likely can be addressed by the OWA through written submissions. However, as the OWA is uniquely qualified as an expert in workers’ compensation law, we may discover in the course of these proceedings an area in which additional evidence could be helpful. Therefore, the possibility of allowing the OWA to [adduce] evidence should be left open. Similarly, the possibility of providing oral argument as an intervenor ought to remain open. (Emphasis added).

22OWA qualifies its position by stating that “Rule 18 does not limit the degree of intervention,” but “it is up to the Tribunal to determine…how much intervention is appropriate.”

23Also, it has asked to be allowed to adduce oral or documentary evidence and oral or written submissions or both, “at a minimum,” “and such further and other order as the Applicant may advise and the Tribunal [permits].” Indeed OWA did not ask to be added as a party. However, it is noted that the degree of intervention it has requested is tantamount to the same rights of a party.

As a Party

Statutes and the Rules

24Subsections 39(2) and (3) of the Code define who are the parties to a proceeding before the Tribunal. Those subsections, expressly or by necessary implication, include only those persons who have alleged that their rights had been infringed, the persons who they alleged to have infringed their rights and the Commission.

25The Tribunal is empowered to add a person, but that person must appear to the Tribunal to have infringed the right or have facts or knowledge concerning the allegation. Notably, the Code does not empower the Tribunal, expressly or by necessary implication, to add complainants; only respondents.

26The power to add a person as a party to the Tribunal’s hearing is not expanded by the SPPA. Particularly, section 5 states that the persons specified in the enabling statute or, if not so specified, persons are “entitled by law” to be parties.

27Regarding the category of “persons entitled by law,” the Tribunal notes that judge-made law allows a person to intervene where there is no other reasonable and effective way in which the issue could be brought before a court or a tribunal. (Macllreith v. Hart (1908), 1908 CanLII 64 (SCC), 39 S.C.R. 657; Thorson v. Attorney General of Canada, 1974 CanLII 6 (SCC), [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, 1975 CanLII 14 (SCC), [1976] 2 S.C.R. 265; Minister of Justice of Canada v. Borowski, 1981 CanLII 34 (SCC), [1981] 2 S.C.R.575; and Finlay v. Canada (Minister of Finance), 1986 CanLII 6 (SCC), [1986] 2 S.C.R. 607). In those cases, the key consideration was who ought to be given standing to protect the interest of the public: “public interest standing.”

28By and large, those cases concerned civil disputes between individuals or government and individual, albeit some involved significant public interests. Unlike the case with criminal and human rights matters, except for the general responsibility of the Attorney-General to defend the government’s legislation, there was no legislative entity to protect the public interest. In human rights cases, the legislated reason d’etre of the Commission is, among other things, to forward, protect and enforce the Code and the underlying policies on which the Code is predicated.

29The Tribunal’s Rules 16, 17 and 18 provide for the participation of an intervenor. Those Rules are reproduced below:

16. Persons who are not parties to a proceeding but who wish to participate shall make a written request to the Board setting out their interest in the matter, the status and degree of participation or intervention sought, and shall file their requests with the Board as soon as possible after they become aware of the proceeding

17. A person who requests the right to participate or intervene in a proceeding shall serve a copy of the request on the Board, all parties and any other person (s) the Board considers appropriate and shall file a Statement of Service (Form 2) with the Board.

18. The right of persons to participate or intervene may be full or partial, may relate to all or part of the proceeding, and may be limited to written submissions, as the panel considers appropriate.

30None of the above Rules seeks to confer power on the Tribunal to add a person as a party to its proceedings. Adding a party is a substantive power. Substantive power comes from the enabling statute, either expressly or by necessary implication.

31The first principle to emphasize concerning a tribunal’s ability to make rules is that a tribunal cannot, by making rules, confer power on itself that is not granted in its enabling statute. Thus, the rules governing the participation of an intervenor are only mechanisms, which help the Tribunal to conduct and control its own process. Like any other Rule, they may be waived or varied by the application of Rule 14. The use the term “right” in Rules 17 and 18 must not be construed to mean that an applicant for intervenor status has an inherent or substantive right to participate in the Tribunal’s proceedings.

32Whether to grant a non-party the privilege to participate in its process is a procedural matter. The Tribunal has exclusive jurisdiction to control its own process: (Ontario (Human Rights Commission) v. Dofasco Inc. (2001), 2001 CanLII 2554 (ON CA), 41 C.H.R.R. D/237 (Ont. C.A.)). The exercise of that discretion, including a non-party participation, will be discussed later in these reasons.

33OWA has described the part it wishes to play, its expertise, its own perspective on the issue and what it thinks might be necessary to serve effectively quite broad. As noted in paragraph 23 above, although OWA did not ask expressly to be added as a party, the degree of intervention it has requested is tantamount to the same rights of a party, and more akin to a the rights of a complainant. To grant such broad intervention is no different from granting full party-rights of participation. And, that would be no different than adding OWA as a party under the guise of a non-party intervenor.

34There is no other authority in the Code, the SPPA, or the Rules to add a non-party to its proceedings. Therefore the Tribunal has no authority under any of them to add the OWA and grant it “full participatory rights, including the right to submit evidence and cross-examine witnesses.”⁵

35The Board’s jurisprudence shows that historically, any person requesting to intervene in its proceedings has been granted permission only as amicus curiae. And, only where the requester had demonstrated it has a real significant interest in the issues, a different perspective that was central to the issues and that such participation likely would be helpful to the Tribunal did the Tribunal grant such standing in some cases. That jurisprudence includes Sinclair v. Peel Non-Profit Housing Corporation (1989), 1989 CanLII 9069 (ON HRT), 11 C.H.R.R. D/342 (Ont. Bd. Inq.); Leshner v. Ontario (No.1) (1991), 1991 CanLII 13134 (ON HRT), 16 C.H.R.R. D/175 (Ont. Bd. Inq.); Christian v. Northwestern General Hospital (No. 1) (1993), 1993 CanLII 16507 (ON HRT), 20 C.H.R.R. D/487 (Ont. Bd. Inq.); Findlay v. Mike’s Smoke and Gifts (No. 1) (1993), 1993 CanLII 16430 (ON HRT), 21 C.H.R.R. D/11 (Ont. Bd. Inq.); Jeppesen v. Ancaster (Town) (No. 2) (2001), 2001 CanLII 26209 (ON HRT), 39 C.H.R.R. D/177 (Ont. Bd. Inq.); and Odell v. Toronto Transit Commission, [2001] O.H.R.B.I.D. 16.

As an Amicus Curiae

36Traditionally, the role of the amicus curiae is to serve the interest of the court, which may be different from the interests of the defendant or the plaintiff. The Tribunal notes that the general underlying principle for granting non-party standing has been guided by the notion that matters involving public interest, where the decision likely will have broad implications, should be explored beyond the interests of the parties. The jurisprudence indicates that except for the general responsibility of the Attorney-General to defend the government’s legislation, by and large, there had not been a legislative public interest guardian.

37Every human rights case, including this case, concerns important public interests. That notion is borne out clearly in the preamble of the Code. In part, it states that in

“recognition of the inherent dignity and the equal and inalienable rights of all members of the human family…it is the public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law…these principles have been confirmed in Ontario by the enactment of the Legislature…”

38The legislative framework of human rights protection in Ontario mandates the involvement of the Commission. Among other things, it must forward the policy that the dignity and worth of worth of every person be recognized, and that equal rights and opportunities be provided without discrimination that is contrary to law: (29(a)); develop and conduct programmes of public information and education and undertake direct and encourage research designed to eliminate discriminatory practices that infringe rights under the Code: (29(d)); examine and review any statute or regulation, and any programme or policy made by or under a statute and make recommendations therefore: (29 (e)); enforce the Code and orders of the Tribunal: (29 (i)); and shall have the carriage of the complaint in a proceeding before the Tribunal: (subsections 39 (2)). The latter mandated function, to be a party with the carriage of the complaint, is different from that of a complainant, who is a separate party. That engenders the question about the pragmatic usefulness of an intervenor in a proceeding before the Tribunal.

39As noted above, the jurisprudence of the Board indicates that historically, in some cases it has allowed a non-party to participate in its proceeding, but only as an amicus curiae of the Board. Where it has allowed such intervention, it was persuaded that the person had a significant interest in the issues before it and that the person’s participation likely would be of assistance to the Board in understanding and determining the issues. Where such status was granted, the person’s intervention has been limited to making legal submissions.

40In Christian, supra, and Jeppesen, supra, the adjudicators did not follow the general view of the Board. They granted a non-party intervenor to call evidence on specific issues. It is noted that the Commission had participated in those cases. It may very well be appropriate or even crucial to allow the applicant to act as an amicus curiae to participate in a proceeding where the matter involved an unsophisticated complainant who is unrepresented and the Commission has unilaterally withdrawn from participating in the proceedings. However, the Tribunal ought to restrict the scope of intervention and the manner of participation: e.g., participation in cross-examination of witnesses and making legal submissions.

41In Odell, supra, the Tribunal elucidated certain touchstones, though not exhaustively, by which an applicant may be granted standing. It held that:

[A]n applicant for intervenor status must have a demonstrated record of involvement in the issues in dispute that enable it to bring to the Board factual and analytical underpinning not otherwise available. Furthermore, it must have a different perspective from that of any other parties, a perspective that will be of assistance to the Board in understanding and determining the issues.

42One must not construe, however, that if an applicant meets those touchstones, the Tribunal must or will automatically grant standing. For instance, a different perspective may be of assistance to the Tribunal, but that perspective may not be necessary or crucial for the Tribunal to understand and determine the issues before it.

43Based on OWA’s submissions, there is no doubt that OWA has an interest in the issues before the Tribunal. Its mandate is relative to people who become disabled because of workplace injury. It has knowledge about the workers’ compensation/workplace safety and insurance scheme. It has appeared before WSIAT and its predecessor as an intervenor on several occasions. The Tribunal notes that most of its interventions seem to be in the realm of advocate and doing statutory interpretation. But by its own submission, OWA states “that the nature of the issue before this Tribunal is essentially a legal one.”

44OWA has not convinced the Tribunal that it has any special expertise to contribute to the interpretation of the legislation, particularly concerning the ODSP, which is necessary, crucial or relevant to the understanding and determination of the issues in this case.

45The Tribunal is not convinced that important information would be lost unless OWA is granted standing as amicus curiae. Essentially, OWA, the Commission and the Complainant allege that the application of the ODSP has a discriminatory impact on the Complainant. There is nothing in the Commission’s pleadings or brief submissions to this motion that sets its interests or perspective apart from the OWA’s. Nor has OWA convinced the Tribunal that it is apt to reach an unreasonable or wrong understanding and determination of the issues without OWA’s assistance, or that access to important information would not be obtained unless the Tribunal hears from it.

46OWA says its has a broader perspective on the issues before the Tribunal. Broader does not mean different: just more detail. The Tribunal is not persuaded that OWA has a different perspective or that if it has a different perspective, that perspective is central to the specific issues before the Tribunal. OWA has not convinced the Tribunal that it has a demonstrated record of involvement in the issues, particularly about the ODSP, that will enable it to contribute a factual and analytical underpinning central to the issues before the Tribunal that is not available otherwise. Among other things, OWA wishes, “at minimum,” to make submissions about the proper characterization of a non-economic loss award and why such an award “should not be classified as an asset or income and address any broader issues that may arise on the intersection between ODSP and the Workplace Safety and Insurance scheme.”

47The Tribunal is inclined to believe that “broader” or different perspective, more than likely, would lengthen the hearing. Furthermore, there is a real concern that OWA’s intervention probably would shift the focus of the hearing and pursue its own interests. Moreover, the information it brings, although important, could be extraneous to the core interest of the specific issues before this Tribunal. Thus, this engenders a concern that, more than likely, OWA’s intervention would prolong the hearing without any real benefit to the pen-ultimate goal, that is, to understand the issues and ultimately, to determine whether the Complainant’s rights had been infringed.

48OWA has not satisfied the Tribunal that the assistance it proffers is not available otherwise. Neither OWA nor the Commission has satisfied the Tribunal that giving intervenor status to OWA is the only way by which its “broader perspective” can be brought to this proceeding.

49As noted above, implicitly, the Commission is charged with the statutory obligation to bring its expertise, knowledge and the broader public’s perspective to the Tribunal – not only for the benefit of the position it takes in the proceeding, but, for the public, which includes a complainant, a respondent and the Tribunal: a prosecutorial role, if you will.

50The Tribunal is not persuaded that this is an extra-ordinary technical case that is beyond the expertise or competence of the Commission. The Commission has over forty-two years of human rights expertise spanning the field of social justice, education and policy, including disability. It ought to have such expertise to edify the OWA according to its statutory mandate. However, if OWA has more expertise than the Commission it can be called as a witness so that the whole process can benefit from its expertise. The Tribunal notes that among its many accomplishments, OWA has “prepared submissions to the [Commission] on its Accommodation Consultation documents.”⁶

Conclusion

51Reviewing the Tribunal’s jurisprudence, there is a keen consistency of the view that the Tribunal has no statutory power to add a person as a party to its proceedings except one who is alleged to have or appears to have infringed or participated in the infringement of a protected right. Stated another way, the Code empowers the Tribunal to add only a respondent and a person akin to a respondent as a party to its proceedings. It cannot add a complainant or any person akin to a complainant.

52Reconsidering this Tribunal’s sufficiently varied approaches and conclusions about whether to grant an intervenor status in its proceeding, the questions that still remain are: when to exercise that discretion; and whether allowing an intervenor promotes efficiency in adjudication or ultimately, whether such intervention enhances the forwarding and protection of human rights and the elimination of discrimination. Ultimately, the answers to those questions may be an empirical matter.

53However, given the legislative function of the Commission and the role of this Tribunal in the human rights scheme in Ontario, there ought to be a more functional and pragmatic approach in the exercise of the discretion to grant an applicant intervenor status. That approach should be capable of accommodating the expertise or different perspective, or both, of the person wishing to intervene and the necessity of the expertise or perspective to the central issue before the Tribunal.

54Borrowing from the jurisprudence of the Board, and given the mandate of the Commission, the basic standard ought to be restrictive, efficiency-based and necessity-based approach in the analysis and determination of whether to allow non-party intervention. The best approach would be for the applicant to submit its information via the Commission. That could be done either in the form of expert evidence or ordinary witness testimony. The applicant and the Commission should harmonize their information with the aim of eliminating the need for separate intervention: of course, with the Commission taking the carriage of presenting the information to the Tribunal.

55Where, as in this case, there is an entity with statutory obligation to represent the public interest, it is not enough that the applicant has useful or helpful information to impart to the Tribunal. The more functional and pragmatic view is that in addition to demonstrating that it has a record of involvement in the issues in dispute that enables it to bring to the hearing a factual and analytical underpinning not available otherwise (Odell, supra), it must demonstrate that its has important information that cannot be adduced without its direct intervention, which is necessary for the understanding and determination of the central issues before the Tribunal.

56The basic standard for this efficiency-based and necessity-based analysis should be evaluated along with the overall function of the Commission, followed by any strictly construed analysis of the specialized expertise of the core function of the applicant. That analysis can be supplemented by a fairly strict exception where the complainant is unsophisticated and unrepresented and has divergent interests from the Commission, if the Commission has been granted permission by the Tribunal to not participate in the hearing.

57In several cases reviewed, the Board had taken a less restrictive approach and had granted permission; at least, to make legal submissions. In others cases, the Board had declined permission to intervene. In this case, even that limited participation is not useful or necessary in the understanding and determination of the central issues before this Tribunal. The Tribunal is not convinced that this is the appropriate case to exercise the discretion. Whatever useful information OWA may be able to impart to the hearing can be adduced via the Commission calling Ms Trower or other persons affiliated with OWA to give evidence. As a witness, all the parties and the Tribunal will be able to avail themselves of OWA’s evidence including asking questions.

58For those reasons the Tribunal has dismissed the motion.

Footnotes

1. 1OWA’s letter to the Tribunal dated February 27, 2004.
2. 2Notice of Motion, para. (b).
3. 3Affidavit: para 15.
4. 4(Para 16).
5. 5Cf Christian, supra, the Board found that under section 5 and subsection 23(2) of the SPPA it had the discretion to add a person whose interest would be affected directly by a hearing under the even if the person is not one envisaged under subsection 39(2).
6. 6Para. 11 of Ms Trower’s Affidavit.