HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Derrick McBounds
Applicant
-and-
Hiram Walker & Sons Limited
Respondent
INTERIM DECISION
Adjudicator: Brian Eyolfson
Indexed as: McBounds v. Hiram Walker & Sons
INTRODUCTION
1The applicant filed an Application on September 25, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of race, colour, ethnic origin and disability, in the areas of employment and membership in a vocational association, and reprisal.
BACKGROUND
2In its Response, the respondent indicates that the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 2027 (the “union”) should be named as a respondent. In the ordinary course, this would result in the union being added as a respondent to the Application, however, the respondent also filed a Request for Order during Proceedings to add the union as a party. In its Request for Order, the respondent submits that it is clear that there are allegations of breaches of the Code by the union and certain of its officers and that, as such, the union is both a proper and necessary party to the Application. The respondent also submits, in its Response, that the Application should be dismissed without a hearing on the basis that it is not timely under section 34 of the Code.
3The union, on the other hand, opposes the respondent’s request that it be added as a party but filed a Request to Intervene, without prejudice to its position that the Application should be dismissed for delay. More particularly, the union submits that the Application deals largely with actions alleged to have been perpetrated by the respondent and that, in the areas where the union is mentioned, the alleged actions took place well outside of the time limits in the Code. In response to the union’s Request to Intervene, the respondent maintains that the union should be made a respondent.
4The applicant did not file a Response to the respondent's Request for Order during Proceedings to add the union as a party but opposed the union’s Request to Intervene. In both his Reply and his Response to the union’s Request to Intervene, the applicant disagrees with the submissions of the respondent and the union regarding delay.
DELAY
5Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:
34.(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2:
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
6Under section 34, the Tribunal has no jurisdiction to deal with an application filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.
REQUEST TO ADD THE UNION AS A RESPONDENT
7With respect to the respondent’s Request for Order that the union be added as a party, Rule 1.7(b) of the Tribunal's Rules of Procedure (the “Rules”) provides that the Tribunal may add a party in order to provide for the fair, just and expeditious resolution of any matter before it.
8The legal principles applicable to a request to add a respondent have been set out by the Tribunal in Payne v. Otsuka Pharmaceutical Co., 2001 CanLII 26231 (ON H.R.T.), Epstein v. York Condominium Corporation No. 67, 2003 HRTO 14, Arzem v. Ontario (Minister of Community and Social Services), 2006 HRTO 12, Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep), 2006 HRTO 22, Pieters v. Liquor Control Board of Ontario, Store 568, 2007 HRTO 22, and Santo and Claman v. Toronto Police Services Board, 2008 HRTO 56.
9The first part of the test relates to whether there are facts alleged that could lead to liability of the proposed respondent: see Pieters, supra at para. 7. A party can only be added if there are facts alleged that, if proven, could support a finding that the proposed respondent violated the applicant’s rights: see Greenhorn, supra at para. 28.
10The second part of the test relates to the addition of the proposed respondent at the particular stage in the process at which the order is sought. The Tribunal must examine whether the addition of the proposed respondent as a party would cause substantial prejudice to that party’s ability to make full answer and defence to the allegations that cannot be alleviated by procedural orders of the Tribunal: see Pieters, supra at para. 9, Payne, supra at para. 20, and Greenhorn, supra at para. 26.
11The applicable principles were summarized in Pieters, supra, at para. 10, a case in which the respondent sought to add another respondent party, as follows:
(1) Could the allegations made in the Complaint support a finding that the proposed Respondent violated the Code?
(2) Has the proposed Respondent demonstrated that its addition as a party at this stage in the process would impair its ability to make full answer and defence to the allegations, and that such prejudice could not be alleviated by any order the Tribunal might make?
REQUEST TO INTERVENE
12Pursuant to Rule 11.1, the Tribunal may allow a person or organization to intervene in any case, at any time, on such terms as the Tribunal may determine and the Tribunal will determine the extent to which an intervenor will be permitted to participate in a proceeding. In light of Rule 11.3, in considering a request to intervene, the Tribunal will have regard to factors including the proposed intervenor’s interest in the issues raised in the Application.
DECISION
13In the circumstances, it appears to be most consistent with a fair, just and expeditious process to schedule a teleconference to address the respondent’s preliminary issues and the union’s Request to Intervene.
14Accordingly, the Registrar will schedule a teleconference with the parties and the union. The participants on the teleconference should be prepared to provide submissions and, if necessary, evidence on the following issues:
a. Is the Application made within one year after the last discriminatory incident or, if there was a series of incidents, within one year after the last incident in the series, as required by section 34(1)? If not, was the delay incurred in good faith and is there any substantial prejudice to any person affected by the Application if the Tribunal exercises its discretion to accept the Application pursuant to section 34(2)?
b. Should the union be added as a respondent to the Application, having regard to the principles set out in paragraph 11, above?
c. Should the union’s Request to Intervene be granted? If so, on what terms, if any?
15If the parties and the union wish to rely on any supporting material for the purpose of the teleconference (including submissions, facts or case law not already provided in the Application, Response, Reply, Requests and related submissions), the parties and the union are directed to deliver this material to each other, and to the Tribunal, by no later than two weeks before the date scheduled for the teleconference.
16The Tribunal draws the applicant’s attention to the Applicant’s Guide, available on the Tribunal’s website or from the Registrar’s office, for assistance in preparing for the teleconference. The Guide, at pages 2 – 3, provides a list of resources available to applicants appearing before the Tribunal.
17I am not seized of this matter.
Dated at Toronto, this 24th day of February, 2009.
“Signed by”
Brian Eyolfson
Vice-chair```