Delos Santos v. Maple Lodge Farms Ltd., 2009 HRTO 150

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marderic Delos Santos

Applicant

-and-

Maple Lodge Farms Ltd., Nadia Clements, Bob Luce and Adelia Jeronimo

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty Date: February 11, 2009 Citation: 2009 HRTO 150 Indexed as: Delos Santos v. Maple Lodge Farms

1The applicant filed an Application on October 31, 2008 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of disability.

2This Interim Decision deals with two preliminary matters:

a) A Request to Intervene (“Request”) filed by the United Food & Commercial Workers Canada Local 175 and 633 (the “union”); and

b) The respondents’ request for early dismissal of the Application based on an arbitral decision which the respondents state has appropriately dealt with the substance of the Application.

REQUEST TO INTERVENE

3The union seeks to intervene pursuant to Rule 11 of the Tribunal’s Rules of Procedure (the “Rules”) in order to address the Request for Early Dismissal as well as the remedy sought by the Applicant. The union states that the substance of the Application was dealt with in the arbitral decision and argues that it has a direct interest in any remedy that may impact the interpretation or application of the collective agreement between the union and the respondent.

4The Request was filed on December 23, 2008. The applicant and the respondents have not responded to the Request and the time for doing so under the Rules has now elapsed.

5Based on the materials before me, I find that the union’s position and stated interests relate clearly to the preliminary issue of the grievance process, the scope of the arbitral decision and the respondents’ request for an early dismissal of the Application.

6Given the nature of the union’s interests and position, I find that the union may intervene in the hearing of the respondents’ request for early dismissal of the Application. At this stage, however, I find that it is premature to determine whether the union may intervene in the proceedings beyond the hearing of this preliminary matter. This aspect of the union’s request to intervene should be considered following the determination of the respondents’ request for early dismissal.

7This Order is subject to the following conditions:

a) The Intervenor may call evidence provided it can demonstrate that the evidence will be relevant and helpful to the resolution of the request for an early dismissal; and

b) The Intervenor may cross-examine witnesses provided that the cross-examination is not repetitive and is helpful to a resolution of the issues before the Tribunal.

REQUEST FOR EARLY DISMISSAL

8The respondents have filed a Response to the Application in which they ask the Tribunal to dismiss the Application on the basis that a decision of an arbitrator appropriately deals with the substance of the Application.

9The applicant has not filed a Reply and the time for doing so under the Rules has elapsed.

10Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

11Rule 22.1 states:

The Tribunal may dismiss part or all of the Application where it determines, under section 45.1 of the Code, that another proceeding has appropriately dealt with the substance of part or all of an Application.

12In the circumstances, it is appropriate to determine the respondents’ request for an early dismissal of the Application as a preliminary matter.

13Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application without affording the parties a chance to make oral submissions. Accordingly, the Registrar will schedule a hearing to address the following issue:

Does the arbitration decision appropriately deal with the substance or part of the Application such that it should be dismissed, in whole or in part, pursuant to section 45.1 of the Code?

14The following directions shall apply to the hearing:

(a) The applicant should be prepared to proceed first at the hearing, by responding to the written arguments of the respondents and the Intervenor and the question set out in paragraph 13 above.

(b) Any party wishing to rely on written materials not already filed with the Tribunal or any facts not contained in the Application, Responses or Request to Intervene must deliver such documents or information to the other parties and file them with the Registrar within 21 days of the date of this decision.

(c) No further steps need be taken by any party prior to the hearing of the preliminary issue.

15In preparing for the hearing, the parties may wish to review section 45.1 of the Code, Rule 22, the Tribunal’s jurisprudence on those provisions and the Applicant’s Guide, pages 4-5, available on the Tribunal’s website or from the Registrar’s office.

16I am not seized of this matter.