Peter Khaiter v. York University, 2009 HRTO 1358

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Khaiter

Applicant

-and-

York University, Barry Miller, Lorna Marsden and Rhonda Lenton

Respondents

interim DECISION

Adjudicator: David Muir

Date: September 3, 2009

Citation: 2009 HRTO 1358

Indexed as: Khaiter v. York University

1This is an Application filed on April 8, 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 he has suffered discrimination in the area of employment on the basis of ethnic origin and place of origin. This decision deals with a Request for Order During Proceeding (Form TR-4) ("Request") brought by the York University Faculty Association ("YUFA") seeking leave to intervene in this Application.

2The Tribunal's Rule 14.1 provides:

The Tribunal may allow a person or organization 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.

3The 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.

4YUFA is the bargaining agent for the applicant and his workplace colleagues, the faculty of York University. The material filed by the parties indicates that YUFA has processed a number of grievances filed by the applicant over the years, some of which are, YUFA advises, ongoing and some of which appear to be related to some or all of the issues in dispute in this Application. The materials also indicate that YUFA has been a respondent in applications under section 74 of the Labour Relations Act, 1995, S.O. 1995 C.1, Schedule A, as amended (the "LRA") and is a respondent in an Application for Judicial Review in respect of decisions of the Labour Board in one of these Applications.

5Mr. Khaiter objects to YUFA being granted intervenor status. He makes a number of technical arguments respecting the authority of the persons signing the Request. Mr. Khaiter has raised similar arguments which were considered in 2008 HRTO 241 and rejected. I see no reason to depart from the reasoning of the Tribunal in this earlier decision. I am satisfied that the Request is properly before me and I reject Mr. Khaiter's request that I not deal with it because it is nor properly authorized by YUFA.

6Mr. Khaiter also objects to the Request on the basis, generally, that YUFA has failed to provide sufficient particulars of its interest in this Application. He states that it has not cited one provision of the collective agreement that could be affected by the Application and that submissions in support of intervention are unsubstantiated. Although YUFA could have provided more fulsome responses to the queries included in the Request, I am satisfied that the particulars provided are sufficient to support the Request.

7Mr. Khaiter alleges that the Request is not made in good faith. He suggests that by referring to the various applications under section 74 of the LRA and the application for judicial review, YUFA reveals its intention to intervene as a means of punishing Mr. Khaiter. There is no indication that this is so, on the contrary it is YUFA's participation in these various parallel or related proceedings that tend to support its being granted leave to intervene in this case.

8Mr. Khaiter suggests that the real reason for the Request is in an effort to support the respondents' positions and relies on the fact that YUFA adopts the submissions of the respondents on a number of identified issues in dispute. The positions taken by a potential intervenor are not determinative of a request to intervene. I find no basis for concluding that the Request is improper although the positions that the intervenor intends to take on the issue may well impact on the scope of that intervention.

9Mr. Khaiter also objects on the basis that it is not clear who will be participating in this Application, alleging that it is counsel for YUFA and not YUFA who will be appearing and that this is somehow improper. It is not clear what the source of this suggestion is. However, even if accurate, a party is generally entitled to appear by counsel or agent at their option. This submission is rejected.

10Mr. Khaiter does raise legitimate concerns about YUFA's failure to provide detailed responses to all of the queries in the Request, setting out its positions on the issues raised by the Application. However at the moment, it is not entirely clear what the scope of this Application is in light of the various disputes and Requests of the parties to clarify what is and what is not in dispute in this Application. In any event, I find that the submissions of YUFA to be sufficient to support their Request. There is no prejudice to Mr. Khaiter in the brevity of YUFA's submissions, at this stage.

11In this case, the Application appears to raise issues that are likely of general interest to the union. YUFA is entitled to participate in the proceedings. The objections of Mr. Khaiter do not respond to the fact that as bargaining agent for Mr. Khaiter and his colleagues, YUFA has an apparent and substantial interest in these proceedings. Moreover, it is a party to a number of other concurrent or parallel proceedings that appear to at least touch on the issues in dispute in the Application. 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.

12I am not seized.