Watson v. Wilkes, 2009 HRTO 1581

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marilyn Watson

Applicant

-and-

Jim Wilkes, Tim Carrie and Janice Best

Respondents

-and-

Canadian Office and Professional Employees Union, Local 343

Intervener

INTERIM DECISION

Adjudicator: Eric Whist

Date: September 30, 2009

Citation: 2009 HRTO 1581

Indexed as: Watson v. Wilkes

1The Application was filed on March 18, 2009, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination in employment on the ground of age. This Interim Decision deals with a Request for early dismissal of the Application and a Request to intervene.

Background

2The applicant was an employee of The Canadian Auto Workers (“CAW”) Local 27. The applicant was the oldest of the three administrative staff in the CAW Local 27 office and was second amongst these three staff in seniority. All three employees in the office were members of the Canadian Office and Professional Employees Union (“COPE”) Local 343.

3The respondent Jim Wilkes is the president of CAW Local 27 and was the applicant’s immediate supervisor. The respondent Tim Carrie is the financial secretary of CAW Local 27 and the respondent Janice Best is the COPE staff representative.

4The collective agreement between CAW Local 27 and COPE 343, its employees’ union, expired on September 30, 2007, and negotiations on a new agreement began in October, 2007.

5On October 20, 2007, Janice Best met with Jim Wilkes and Tim Carrie and learned that CAW Local 27 was intending to eliminate one administrative staff position in its office. The applicant alleges that she alone was offered an early retirement package in order to reduce the staff complement in the office and that this was done because of her age (she was 61 years old at the time). The applicant states that in addition to no one else being offered an early retirement package, no substantive effort was made to negotiate a new collective agreement to protect the jobs of all three administrative staff. The applicant claims that, although she refused the initial early retirement offer, she felt obliged to eventually accept an amended offer. The applicant’s employment ended in August 2008. The applicant further claims that during the period of October 2007 to August 2008 there were a number of incidents in which she was unfairly treated by Jim Wilkes or Tim Carrie and that her deteriorating working relationship with these respondents contributed to her decision to leave.

Requests to Dismiss

6Two of the respondents, Tim Carrie and Jim Wilkes, have asked, in a letter dated April 15, 2009, that the Application be dismissed on the grounds that the Application does not disclose a factual basis that could give rise to a finding of discrimination on a prohibited ground under the Code. The two respondents also assert that the Application should be dismissed on the basis of Section 45.1 of the Code and on the additional grounds that it is frivolous, vexatious and made in bad faith. These requests were made prior to the receipt of the respondents’ formal Responses.

7The Tribunal’s general expectation is that requests for the early dismissal of an Application either form part of a formal Response (as allowed for in sections 6 and 7 of the Response form) or by means of a formal Request for an Order During Proceedings. While the respondents have not met these requirements, I am satisfied that, under the circumstances, I can rule on these requests for dismissal. The requests are denied.

8The respondents ask that the Application be dismissed on the ground that it does not disclose a factual basis that could give rise to a finding of discrimination on a prohibited ground under the Code. The respondents have not provided any further details or arguments on this point. I interpret their position to be that the Application fails to disclose a prima facie case of discrimination.

9The onus in the Tribunal’s process is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which, if the allegations made are believed, is sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent. The burden only shifts to the respondent to provide a non-discriminatory explanation for its actions if the applicant establishes a prima facie case of discrimination.

10The Tribunal may consider a request to dismiss an Application on the grounds that a prima facie case has not been established by the applicant. This generally occurs at a hearing, subject to the direction of the Tribunal. In some cases, the Tribunal may consider the question at a preliminary stage, prior to a hearing, particularly when there is an issue of whether the Tribunal has jurisdiction.

11In this case there is no issue being raised as to whether the tribunal has jurisdiction, and no reason to consider this issue prior to the exchange of disclosure. Accordingly, if the respondents wish to request a dismissal on the grounds that a prima facie case of discrimination has not been made by the applicant they will have to do so at a hearing.

12The respondents have also asked for dismissal under section 45.1 of the Code, which states:

45.1 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.

13It is not clear from the respondents’ letter what other proceeding they feel has appropriately dealt with the substance of the Application as none of the Responses or the Application refer to another identifiable proceeding. If the respondents are arguing that it is the fact that the applicant eventually agreed to an amended early retirement package and as a consequence the substance of the application was appropriately dealt with, I cannot agree that under these circumstances section 45.1 applies. Tribunal jurisprudence has considered the issues under section 45.1 as two distinct questions: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the Application. See for example: Dunn v. Sault Ste. Marie (City), 2008 HRTO 149. I do not believe that a negotiated early retirement package between parties constitutes a proceeding as is required under section 45.1.

14The respondents also request an early dismissal based on the Application being frivolous and vexatious. Prior to amendments which came into effect on June 30, 2008, the Code permitted the Ontario Human Rights Commission to dismiss complaints on the basis that they were frivolous, vexatious or made in bad faith. These provisions of the Code are no longer applicable.

Request to Intervene

15COPE Local 343 has formally made a Request to Intervene (Form 5). The applicant and the respondents have not responded to this request to intervene.

16COPE Local 343 indicates in its request that it wishes to address the issue of whether the offer of early retirement (and the withdrawal of this offer) by the respondent employer was discriminatory, whether respondent Janice Best acted in a discriminatory manner and if there has been a breach of the Code what remedy, if any, should follow.

17A union almost always has an interest in a human rights application involving a member and unless there are exceptional circumstances the Tribunal will grant the bargaining agent intervener status when requested. I see no reason, under the circumstances, not to grant the COPE Local 343’s request to intervene. The extent of the intervener’s participation in the Tribunal’s proceedings will be determined by the Tribunal at the appropriate time.

18I am not seized of this matter.