HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Adam Karstulovich
Applicant
-and-
Durham District School Board, Brian Reid, Lou Vavougios and Catherine Miller
Respondents
-and-
Canadian Union of Public Employees, Local 218
Intervenor
interim DECISION
Adjudicator: Kaye Joachim
Indexed as: Karstulovich v. Durham District School Board
[1] This is an Application filed on December 17, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).
[2] The Canadian Union of Public Employees, Local 218 (the “Union”) has filed a Request to Intervene to which the applicant has not objected. The applicant is represented by the same counsel as the Intervenor. The respondents oppose this request. First, they note that the applicant is not a member of the Union’s bargaining unit. Second, they allege that the Union’s motive in seeking intervention is to rectify an improper action they previously took.
[3] The applicant self-identifies as a person with cerebral palsy. He was offered a position as a custodian with the Durham District School Board (the “Board”), subject to successful completion of a physical. Following the physical, he was advised that the Board considered he was not capable performing the essential duties of the position.
8The Union is the bargaining agent for a unit of employees employed by the Board, of which the applicant would have become a member, had he been employed. The Union indicates that is interests may be affected by the issues and remedies in that the same standard of fitness applied to applicants are also applied to members of its bargaining unit. They seek to intervene to observe the proceedings to ensure that the Board’s position on the essential duties of the job is put forward accurately.
9The Tribunal’s Rules of Procedure for Transitional Applications under sections 53(3) and 53(5) of the Human Rights Code provide that section 53(3) applications will be resolved in a highly expeditious manner. There is no specific Rule permitting intervenors in section 53(3) applications, although Rule 14 does provide for intervention in section 53(5) applications: Rule 14.1:
14.1 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.
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.
11In this case, although the Union does not represent the applicant because he was not hired by the respondent, the Union does have an interest in the standard of fitness applied by the employer to the position of custodian. With respect to the alleged wrongdoing by the Union in disclosing confidential information to the applicant’s counsel, I fail to see how making the Union an intervenor at this stage would rectify any prior action. I find that it would fair just and expeditious to permit the Union to intervene in this Application. The extent of the Union’s participation in any future proceedings will be determined by the Member who presides over those proceedings.
12I am not seized.
Dated at Toronto, this 2nd day of November, 2009.
“Signed By”
________________________________
Kaye Joachim
Alternate Chair