Tewogbade v. Toronto Police Services Board, 2009 HRTO 1281

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Tewogbade

Applicant

-and-

Toronto Police Services Board and Mike Earl

Respondents

-and-

Toronto Police Association

Proposed Non-Party Intervenor

INTERIM DECISION

Adjudicator: Mark Hart

Date: August 18, 2009

Citation: 2009 HRTO 1281

Indexed as: Tewogbade v. Toronto Police Services Board

WRITTEN SUBMISSIONS BY

John Tewogbade, ) Selwyn Pieters, Counsel Applicant )

Toronto Police Association, ) Caroline V. (Nini)_ Jones, Counsel Proposed Non-Party Intervenor )

1This is an Application filed January 7, 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The purpose of this Interim Decision is to address the request by the Toronto Police Association (“TPA”) for non-party intervenor status in this proceeding.

3On July 28, 2009, the TPA filed a Request to Intervene on the basis that the remedial orders sought by the applicant, which it says include reinstatement to his employment as a police officer, and a request for disclosure filed by the applicant, which seeks broad disclosure of detailed personal information about current and former TPA members, may affect the TPA’s collective agreement with the respondent Board and/or TPA members. On this basis, the TPA submits that it has a substantial and continuing interest in the remedies and disclosure being sought in this matter.

4No position has been taken by the respondents in relation to the TPA’s request.

5The applicant opposes the request to intervene on a number of bases. First, the applicant raises the TPA’s delay in making this request. The applicant submits that the complaint underlying this Application was filed with the Ontario Human Rights Commission on May 5, 2005 and the TPA was aware of the complaint since that time, yet indicated no interest in participating in the proceedings. However, as correctly noted by the TPA in its reply submissions, at that time the Commission’s process did not allow for any formal request to intervene prior to a complaint being referred to this Tribunal for a hearing.

6The applicant next notes that on June 8, 2009, the Tribunal issued a Notice to Affected Person noting that the applicant had identified the TPA as a party that may be affected by the Application and requesting that the TPA file a Request to Intervene within 14 days of the date of receipt of this letter if it wished to participate in this proceeding. The first correspondence received by the Tribunal from the TPA in this matter is dated July 20, 2009, which appears to have been filed in response to the applicant’s request for disclosure. This correspondence states that a response to the applicant’s request for disclosure was due that day, but requests an indulgence from the Tribunal while instructions were sought. This was followed by the filing of the TPA’s Request to Intervene eight days later on July 28, 2009. In correspondence accompanying the Request to Intervene, the TPA states that it had not received production of all pleadings, including the Response and any other filings.

7From the material filed, it is unclear when the TPA received the Tribunal’s June 8, 2009 letter. Even assuming that it received the letter on the date sent, which is unlikely, a Request to Intervene should have been filed by June 22, 2009 at the earliest. As a result, the actual request is a little over one month late. However, the applicant’s request for disclosure, which was the precipitating cause of the TPA’s contact with the Tribunal and one of the reasons underlying the TPA’s request to intervene, was only served on the TPA on July 6, 2009.

8In all of these circumstances, I do not find that there was any undue delay in the TPA seeking intervenor status in this proceeding, so as to preclude its participation.

9The applicant also takes the position that adding the TPA as an intervenor would substantially disrupt the proceedings, require new pleadings and cause further delays. I do not see that this is the case. The TPA is seeking non-party intervenor status to address the request for disclosure filed by the applicant and the remedies sought as they may affect the collective agreement and its members. In my view, granting non-party intervenor status on this basis would not disrupt the proceedings, require any new pleadings or cause any undue delay.

10As stated by this Tribunal in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 at para. 13:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

11Accordingly, the TPA is hereby granted non-party intervenor status to address the request for disclosure filed by the applicant and the remedies sought as they may affect the collective agreement and its members. The parties shall provide to the TPA all material that each of them has filed with the Tribunal.

12I am aware that the TPA wishes to respond to the request for disclosure filed by the applicant. The Tribunal initially had advised the parties that the request for disclosure was premature, as the date for the respondents to disclose all arguably relevant documents had not yet expired. By letter dated July 14, 2009 and on consent of the parties, the Tribunal extended the date for the respondents to make disclosure to August 10, 2009. By letter dated August 17, 2009, applicant’s counsel indicated that this disclosure still had not been made, for reasons apparently related to the City strike.

13At this stage, the Tribunal will proceed to consider the applicant’s request for disclosure in writing in accordance with the following schedule:

a. Within 14 calendar days of the date of this decision, the respondents shall serve and file their written submissions in response to the applicant’s request, including any evidence and case law upon which they rely. If, prior to this time, the respondents make disclosure of some or all of the documents requested, they shall so indicate in their submissions.

b. Within seven calendar days of the date of receipt of the respondents’ submissions, the TPA shall serve and file its submissions in relation to the applicant’s disclosure request, including any evidence and case law upon which it relies.

c. Within 14 calendar days of receipt of submissions from the TPA, the applicant shall serve and file any reply.

14I am not seized.