Morsi v. Ontario (Finance), 2009 HRTO 1891

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hoda Morsi

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Finance, John Lucas, Barry Chan and Rick Steinbock

Respondents

-and-

Ontario Public Service Employees Union

Intervenor

interim DECISION

Adjudicator: David Muir

Date: November 6, 2009

Citation: 2009 HRTO 1891

Indexed as: Morsi v. Ontario (Finance)

1This is an Application filed on June 3, 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 she was subject to discrimination in employment on the basis of age, sex creed, disability, ethnic origin and place of origin. She also alleges reprisal.

2This Interim Decision deals with a Request to Intervene and provides case assessment directions with respect to various issues raised in the Response.

3The Ontario Public Service Employees Union (OPSEU) filed a request to intervene on August 10, 2009 to which the applicant has had a chance to respond. By correspondence received before the Request to Intervene was filed the applicant indicated that she would like OPSEU to intervene on her behalf. The applicant has not otherwise responded to the Request.

4OPSEU represents a bargaining unit of employees of the respondent employer. The applicant was employed by the respondent employer and OPSEU was the applicant's bargaining agent. OPSEU states that all of the remedies sought by the applicant may affect OPSEU's collective agreement and may affect OPSEU's member. OPSEU states that it has a substantial and continuing interest in the remedies being sought by the applicant.

5Moreover OPSEU states that is actively representing the applicant in various grievances that appear to substantially overlap with the instant Application. A total of 34 grievances have been filed the applicant, according to OPSEU and it is not apparent to the proposed intervener that there are any issue raised in the Application that are not being dealt with through the grievance process. OPSEU states that many days of hearing have been held and with many more scheduled through November and December of this year and seven further dates in January and February 2010.

6The 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.

7The 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.

8In this case, the Application raises issues that are likely of general interest to the OPSEU. The Request to Intervene is granted. The extent of OPSEU's participation in any future proceedings will be determined by the Vice-chair or Member who presides over those proceedings.

Submissions on Dismissal/Deferral

9In their Response the respondent states this Application should be dismissed or deferred on a number of different bases. The respondents state that all of the issues raised in the Application have been raised in virtually identical language in other proceedings and that final decisions been made or releases executed. The respondents also state that the Application discloses no prima facie case and is out of time.

10As noted above OPSEU has submitted that this Application should be deferred pending the outcome of twenty or more grievances ongoing before the Grievance Settlement Board dealing with the issues raised in the Application. I note as well that OPSEU has advised that one of the days scheduled for this ongoing arbitration hearing is the date currently scheduled for the mediation of this Application.

11I find that the most fair just and expeditious manner of proceeding to resolve this Application is to invite the parties' submissions on the issues raised by the respondent in paragraph B of Schedule "A" to the Response. The mediation scheduled for November 20, 2009 is cancelled.

12The parties are directed to provide their submissions on the following schedule:

1. The applicant will deliver and file her submissions on the issues raised by the Response within 30 days of the date of this decision;

2. The respondents will deliver and file their reply submissions, if any, within 20 days of receipt of the applicant's submission.

3. The applicant may deliver and file her reply submissions, if any, within 10 days of receipt of the respondents' submissions.

13The Tribunal may decide to deal with this issue based on the written submissions of the parties. If oral submissions are required the Tribunal will contact the parties after receiving the submissions of the parties.

14I am not seized.