Loomba v. Home Depot Canada, 2008 HRTO 389

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deepinder Loomba

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Home Depot Canada Inc. and Brian Busch

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: December 11, 2008

Citation: 2008 HRTO 389

Indexed as: Loomba v. Home Depot Canada

WRITTEN SUBMISSIONS BY

Deepinder Loomba, Complainant ) Raj Anand, Counsel

Home Depot Canada Inc. and Brian Busch, ) Kevin MacNeill, Counsel Respondents ) )

Attorney General of Ontario, ) Michael Dunn, Counsel Proposed Intervener )

Ontario Human Rights Commission ) Anthony Griffin, Counsel

Introduction

1This Interim Decision deals with a request to intervene by the Attorney General of Ontario (the “Proposed Intervener”) in the hearing of this complaint.

2The Proposed Intervener requests that the hearing be bifurcated. The Proposed Intervener suggests that the first stage address, without the participation of the Proposed Intervener, the issue of the location of the complainant’s duties. If the determination of the first stage engages the Occupational Health and Safety Act, R.S.O. 1990 c. O.1 (the “OHSA”), the Proposed Intervener seeks full standing to participate in the second stage and address the application of the OHSA.

Parties’ Positions

3The Commission and the complainant agree with the Proposed Intervener’s suggestion that the hearing be bifurcated and consent to the Proposed Intervener’s full participation in the second stage of the hearing.

4Although the respondents consent to the proposed intervention, the respondents submit that the Proposed Intervener should participate throughout the hearing. The respondents argue that the Proposed Intervener has valuable knowledge and experience that would assist the Tribunal in its determination of the initial issues to be canvassed in the first stage of the hearing.

5The Proposed Intervener indicates that it does not wish to participate in the first stage of the proceeding and “takes no position on the question of whether or not the OHSA is engaged”.

ORDER

6Given the Proposed Intervener’s expressed interest in certain issues and intention to participate with respect to only those limited matters, the request to bifurcate the hearing and the request for intervention is granted. If the interaction of the OHSA and the Ontario Human Rights Code, RSO 1990, c. H 19, as amended, (the “Code”) is to be addressed, the Proposed Intervener is granted standing to participate in the second stage of the hearing.

7This order is subject to the following conditions:

1. The hearing is divided into stages: the first stage will consider whether or not the OHSA applied to the facts of the complaint and, if necessary, the second stage will consider the interaction of the OHSA and the Code;

2. At the second stage, the Intervener may call evidence provided that it can demonstrate that the evidence will be relevant and helpful to the resolution of the issues before the Tribunal; and

3. At the second stage, the Intervener will be permitted to cross examine witnesses provided that the cross examination is not repetitive and must be helpful to a resolution of the issues before the Tribunal.