Ontario Human Rights Commission v. General Motors Defence, 2006 HRTO 30

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Thomas Sinclair, Roland Craig, Barry Fawcett, Donald Coubrough,

Lloyd Gordon and Elie Faysal

Complainants

-and-

General Motors Defence, a division of General Motors

of Canada Limited

Respondent

Interim DECISION

Adjudicator: Ian Anderson

Date: November 15, 2006

Citation: 2006 HRTO 30

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

E-mail hrto.registrar@jus.gov.on.ca

Website www.hrto.ca

1General Dynamics Land Systems Canada Corporation (GDLS-C) and the CAW-Canada and its Local 27 seek to intervene in these proceedings between the Complainants, and the Ontario Human Rights Commission, and General Motors Defence, a division of General Motors of Canada Limited (GMD).

Background

2GMD held a contract to produce Light Armoured Vehicles for the United States Army. In order to produce those vehicles, GMD received technology and data exported to it from the United States. That technology and data is regulated by the federal Defence Production Act R.S., 1985, c. D-1 and the federal Export and Import Permits Act R.S., 1985, c. E-19. GMD states that these federal statutes dovetail with the American International Traffic in Arms Regulations 22 C.F.R. 120-130 and that Canadian federal law requires compliance with ITAR.

3On August 19, 2002, GMD sent home a number of its employees, including the Complainants, who had citizenship other than Canadian or American. GMD states that it was required to do so in order to comply with ITAR. All of the Complainants are members of a bargaining unit of employees for which CAW-Canada and its Local 27 hold representation rights. On March 31, 2003, General Motors of Canada Limited in some manner sold GMD to GDLS-C. GDLS-C carries on the entire defence business of GMD. GMD no longer operates any defence business in Canada.

4The Complainants and the Commission take the position that GMD’s actions constitute discrimination in employment on the basis of their citizenship or place of origin contrary to the Ontario Human Rights Code. The complainants seek certain private remedies against GMD. The Commission seeks the following public interest remedies:

(a) an Order declaring that GMD’s conduct in calling the complainants to meetings and sending them home on August 19, 2002, in failing to seek security clearances for them, and in subsequently altering their terms and conditions of employment (for the unionized complainants) or refusing to continue to provide work (for the non-unionized complainants), was prima facie discriminatory on the basis of citizenship , contrary to subsection 5(1) of the Code;

(b) an Order declaring that GMD and/or GMCL ought to have (i) made best efforts to apply for and obtain the requisite security clearances for all complainants in as prompt a fashion as possible, (ii) kept the complainants apprised of their efforts in this regard, and (iii) accommodated the complainants in positions that were not security-sensitive until such clearances could be obtained, and on an ongoing basis if such clearances could not be obtained, all subject only to the principle of undue hardship within the meaning of the Code;

(c) an Order requiring that if GMD/GMCL engages in work now or in the future that is subject to the American ITAR, it will:

(i) promptly take all available steps to apply for all necessary security clearances for workers who have citizenships other than Canadian and American; and

(ii) instruct recruiting personnel agencies not to screen out persons because they have citizenships other than Canadian or American, and accept any such persons that may be referred by the personnel agencies, making best efforts to apply for necessary security clearances and placing then in non security-sensitive positions pending determinations regarding the clearances; and

(d) such further and other public interest remedies as the Commission may request and the Tribunal may deem just.

5By letter dated September 19, 2006, following a Pre-hearing Conference Call on September 18, 2006, the Registrar set forth a schedule for the filing of submissions and replies with respect to, among other things, questions of intervention.

Intervention by GDLS-C

6Pursuant to the schedule established by the Tribunal GDLS-C filed submissions seeking to intervene not as a party, but on the following limited basis:

a. That it be permitted to participate only with respect to the preliminary motion brought by GMD to dismiss these complaints on the basis of the following constitutional issues:

In view of the Federal Power’s regulation of defence production, including security requirements and its international agreements to “a co-ordinated package of national regulatory and legislative measure”, does the Constitution including the application of the doctrine of interjurisdictional immunity require that these Complaints be dismissed? Because the Federal Power has established a complete code relative to defence production, including the manufacture of Light Armoured Vehicles, does this provincial tribunal [i.e. the Tribunal] have any jurisdiction to interfere with the Federal Power? Does the Tribunal have the power to use the Charter to void or otherwise affect federal law? Does a provincial tribunal have the authority to override decisions made under the federal Export and Import Permits Act, supra?

b. That it will not adduce evidence, cross-examine witnesses or other wise act as a party to the proceedings, but will be limited to making representations on the above referenced issues based on the pleadings of the parties, and the applicable legal and constitutional principles.

c. That it be permitted to make both written and oral representations of law with respect to the issues.

d. That upon the final determination of these issues, GDLS-C will not participate further in these proceedings.

e. That it agrees to be bound by the Tribunal’s determination of these issues in relation to two outstanding human rights complaints before the Commission in which it is a Respondent: Faysal v. General Dynamics Land Systems Canada – Complaint No. PDES-6BDLC6, and Kabango v. General Dynamics Land Systems Canada – Complaint No. PDES-6BDKUZ.

7By letter dated October 24, 2006, GMD agreed that GDLS-C should be granted intervenor status on the basis requested. By letter dated October 27, 2006, the Commission filed submissions opposing GDLS-C’s request, while recognizing that the Tribunal has the authority to permit such an intervention. No submissions have been filed on behalf of the individual Complainants.

8GDLS-C and the Commission have both filed detailed submissions, reviewing various articulations of tests applied in determining whether to permit a party to intervene, and arguing whether GDLS-C meets those tests. In my view, while the tests reviewed serve to identify factors which might be helpful to consider in a given case, the question of whether or not the Tribunal should exercise its discretion to permit an intervention is ultimately to be resolved at the level of more basic principles. As stated by Dubin C.J.O. in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990) 70 O.R. (2d) 164 (C.A.):

Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

9In this case GDLS-C, while not a necessary party to this litigation, is in no sense a stranger to it. While it may have no liability for the actions of GMD prior to March 31, 2003, it has stepped into its shoes with respect to the defence contracts subsequent to that date. Indeed, it is a respondent in two further complaints to the Commission raising, broadly speaking, the same issues, one of which has been filed by one of the complainants in the present proceedings before the Tribunal. A fundamental issue at the root of this litigation, whether compliance with ITAR supersedes the Human Rights Code, will affect it. The public interest remedies sought by the Commission are of far greater practical concern to GDLS-C than they are to GMD, which is no longer engaged in defence contract work in Canada. In this sense, if not others, GDLS-C has a perspective on the issues in this litigation which is unique from that of GMD. Also, unlike GMD, which was a small defence-related part of a much larger non-defence business, GDLS-C is an integral part of a multi-national defence business: all of its operations, and that of its parent and related companies, are defence related. Accordingly, GDLS-C has a specialized knowledge of the practical, technical and legal realities which face a multi-jurisdictional defence business. Given the limited basis on which GDLS-C seeks to intervene, no injustice would be caused to the immediate parties, in particular if it is restricted to written representations, or, if it would be of assistance to the Tribunal, limited oral representations.

10Accordingly, the Tribunal grants the request of GDLS-C to intervene on the basis set out above, for the purposes of making written representations. Whether GDLS-C will be permitted to make oral representations will be addressed at a later date, as discussed further below.

Intervention by CAW-Canada and its Local 27

11Pursuant to the schedule established by the Tribunal, CAW-Canada and its Local 27 filed submissions seeking to intervene not as a party, but for the limited purpose of:

a. making written submissions regarding GM’s constitutional question

b. calling evidence, and cross examining witnesses and making oral and/or written argument pertaining to any issue raised by a party relating to the Charter of Rights and Freedoms and its applicability to the laws which facilitated or permitted GM to carry on its defence armament business in London, Ontario

c. calling evidence, and cross examining witnesses and making oral and/or written submissions regarding the matter of the accommodation of the Complainants and potential future measures of accommodation, assuming a discriminatory practice has been made out in these matters.

12By letter dated October 24, 2006, GMD agreed that CAW-Canada and its Local 27 should be granted intervenor status on the basis requested. By letter dated October 27, 2006, the Commission consented to the request made by CAW-Canada and its Local 27. No submissions have been filed on behalf of the individual Complainants.

13Having regard to the submissions of CAW-Canada and its Local 27 and the agreement of the Commission and GMD, the Tribunal grants the request of CAW-Canada and its Local 27 on the basis set out above.

Procedural

14In accordance with the schedule set out in the Registrar’s letter of September 19, 2006, GMD’s motion to have the case dismissed on the basis of the constitutional issues is to be heard on January 9 and 10, 2007. GMD was to file its motion by November 15, 2006, with the other parties having until December 6, 2006 to file replies. The intervenors GDLS-C and CAW-Canada and its Local 27 shall also have until December 6, 2006, to file their written submissions with respect to the constitutional issues.

15GMD is directed to file with the Registrar no later than November 23, 2006, its estimate of the time it will require to make oral argument on the constitutional issues. The other parties, and GDLS-C, are each directed to provide an estimate of the time they will require to make oral argument on the constitutional issues when filing their replies and written submissions on December 6, 2006.

16The parties are directed to consult with each other for the purposes of attempting to reach an agreement on any facts necessary for the purposes of hearing the motion on the constitutional issues. Any resulting statement of agreed facts is to be filed by GMD with the Tribunal no later than December 6, 2006.

17The Tribunal will determine the amount of time the parties will be permitted for oral argument, and whether GDLS-C will be permitted to make oral argument, and if so for how long, after it reviews the materials filed with respect to the constitutional question.