Anna Colella v. Toronto Catholic District School Board, 2009 HRTO 1867

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anna Colella

Applicant

-and-

Toronto Catholic District School Board, Bob Dubniak, Paul Deighan, Sam Talarico, Cesare Mirabelli and Frank Ferrante

Respondents

-and-

Canadian Union of Public Employees and its Local 1280

Intervener

Interim DECISION

Adjudicator: David Muir

Date: November 4, 2009

Citation: 2009 HRTO 1867

Indexed as: Colella v. Toronto Catholic District School Board

1This is an Application filed on June 29, 2009, pursuant to section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant in the human rights complaint underlying this Application alleges that her right to be free of discrimination and harassment in the workplace in respect of an alleged disability and sex has been infringed by the respondents.

2This Interim Decision deals with a Request for Order During Proceedings filed by the respondents and a Request to Intervene filed by the applicant's bargaining agent, the Canadian Union of Public Employees and its Local 1280 ("CUPE").

3The applicant, although invited to respond to both of these Requests, filed only one Response (Form TR-5) which did not specify to which it was addressed. The applicant's only submission was that CUPE sided with the respondent employer. Attached to the TR-5 are a number of documents that indicate that CUPE had some concerns about the strength of some of the grievances filed by the applicant. For purposes of this Interim Decision, I have assumed that the applicant's submission was intended to be responsive to both Requests cited above.

Request to Dismiss or Defer

4The respondents have requested an early dismissal of the Application pursuant to section 45.1 of the Code, or, in the alternative, that the Application be deferred pending the outcome of one or more grievances touching on the subject matter of the Application. The respondents state that the applicant has filed 20 grievances between August 1998 and June 2009, 14 of them since February 2005. The respondents state that many of the grievances appear to touch on the issues raised in the Application. The respondents also state that some of these grievances have been settled or abandoned and some remain outstanding.

5It is not clear from the respondents' submissions which grievances remain to be resolved and which have settled or been abandoned. Although it does appear that some of the grievances filed by the applicant touch on the issues which are the subject-matter of the complaint, without knowing the outcome of the various grievances or which remain outstanding it is impossible to come to any conclusions on the respondents' request. Accordingly, I find that the most fair, just and expeditious procedure is to schedule a half-day hearing to hear the respondents' Request to dismiss or defer with more detailed submissions on the status of the various grievances filed.

Request to Intervene

6CUPE has filed a request to intervene to which the applicant has had a chance to respond. The applicant appears to object to CUPE being granted the right to intervene. The applicant states that CUPE has sided with the employer.

7CUPE states that it is the bargaining agent of the applicant and represents her in relation to workplace issues. It is further stated that the applicant has filed a number of grievances, some of which have resolved and others have not.

8The Tribunal's Rule 14.1 provides:

The Tribunal may allow a person, organization or the Commission 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 intervener will be permitted to participate in a proceeding.

9The 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 intervener. The presiding adjudicator will generally be in the best position to decide issues such as whether the intervener may call evidence, the scope of any such evidence, and the extent and scope of any submissions that the intervener may be permitted to make.

10In this case, the Application appears to raise issues that are likely of general interest to CUPE. I note for example that amongst the remedies sought by the applicant is that she be assigned to a school of her choice. Such a request clearly raises issues that will be of interest to CUPE as the representative of the applicant and her workplace colleagues in the bargaining unit. The Request to Intervene is granted. The extent of CUPE's participation in any future proceedings will be determined by the Vice-chair or Member who presides over those proceedings.

ORDER

11The Tribunal makes the following directions:

1. The parties will provide to the Tribunal their availability for a half-day hearing in March 2010 to deal with the respondents' Request for early dismissal or, alternatively, the deferral of the Application.

2. The parties will provide any further submissions, including any documents they intend to rely on in respect of the respondents' Request, at the latest 20 days before the date of the hearing.

3. CUPE's Request to Intervene is granted and the style of cause amended accordingly.

12I am not seized.