Mark v. Toronto District School Board, 2009 HRTO 1185

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pam Mark

Applicant

-and-

Toronto District School Board and Peter Thatcher

Respondents

-and-

Elementary Teachers’ Federation of Ontario

Intervenor

interim DECISION

Adjudicator: David Muir

Date: July 31, 2009

Citation: 2009 HRTO 1185

Indexed as: Mark v. Toronto District School Board

1This is an Application filed on March 3, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that she has suffered discrimination in the area of employment on the basis of disability. The applicant identified the Elementary Teachers of Toronto as an affected party.

2The Elementary Teachers’ Federation of Ontario (“ETFO”) filed a request to intervene to which the applicant has had a chance to respond. Neither the respondents nor the applicant have responded to ETFO’s request to intervene. This Interim Decision addresses the union’s intervention request.

3ETFO is the bargaining agent for the elementary teachers employed by the corporate respondent and the applicant is a member of the union. ETFO states that it has a genuine and significant interest in any remedial issues that may arise in connection with the Application, specifically any settlement that may be negotiated by the parties in mediation or any accommodation ordered by the Tribunal. ETFO states that as the bargaining agent for teachers employed by the Toronto District School Board (“TDSB”), it plays a fundamental role in the accommodation process. Further, ETFO states that it owes a duty to fairly represent the interests of the applicant as well as the bargaining unit as a whole. Accordingly, ETFO states it has an interest in seeking to ensure that any accommodations that may be provided to the applicant do not impose undue hardship on its membership as a whole. ETFO also states that the Application raises issues with respect to certain provisions of the Collective Agreement to which it is a party. As a party to the Collective Agreement, ETFO states that it has a genuine and significant interest in the interpretation and application of the Collective Agreement.

4The Tribunal’s Rule 14.1 provides:

14.1 The Tribunal may allow a person, organization or the Commission to intervene in any case at any time on such terms as the Tribunal may determine. The Tribunal will determine the extent to which an intervenor will be permitted to participate in a proceeding.

5The first issue to be determined is whether the person or organization will be permitted to intervene. If the person or organization is permitted to intervene, the next question is the extent of participation. In most cases, the determination of the first question will be decided, as in this case, as a preliminary issue in advance of a hearing. In my view, in most cases, it is appropriate for the Vice-chair or Member who presides over the hearing to decide the extent and nature of the participation of the intervenor. The presiding adjudicator will generally be in the best position to decide issues such as whether the intervenor may call evidence, the scope of any such evidence, and the extent and scope of any submissions that the intervenor may be permitted to make.

6In this case, the Application appears to raise issues that are likely of general interest to the union. ETFO is entitled to participate in the proceedings. The Request to Intervene is granted. The extent of the union’s participation in any future proceedings will be determined by the Vice-chair or Member who presides over those proceedings.

7I am not seized.