HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Harro Bauer
Applicant
-and-
City of Toronto
Respondent
- and -
Toronto Civic Employees’ Union, Local 416
Intervenor
INTERIM DECISION
Adjudicator: David A. Wright
Indexed as: Bauer v. Toronto (City)
[1] This Interim Decision addresses three preliminary issues that have arisen in this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and harassment in employment on the basis of “creed”. First, it addresses the Request to Intervene by the Toronto Civic Employees Union, Local 416. Second, it determines the applicant’s Request for Interim Remedy. Third, it determines the appropriate next steps in view of the respondent’s request that the Application be dismissed on a preliminary basis.
[2] The Application was filed naming the respondent as “Toronto Emergency Medical Services”. Its name is amended to “City of Toronto”.
THE APPLICATION
[3] The applicant is employed as a paramedic with Toronto Emergency Medical Services. He is a member of a bargaining unit represented by the Toronto Civic Employees’ Union, Local 416 (the “union”).
[4] In 2002, the union engaged in a legal strike, which lasted 16 days before the members of the bargaining unit were legislated back to work. Pursuant to the Ambulance Services Collective Bargaining Act, 2001, S.O. 2001, c. 10, the terms of an essential services agreement that applied to the strike were determined by the Ontario Labour Relations Board. According to the respondent, the agreement mandated the minimum paramedic staffing levels that had to be maintained during the strike, effectively requiring approximately 75% of the paramedics to work, on a rotating, prescheduled basis, at any given time during the strike.
[5] The applicant was a shop steward for the union prior to the strike. He states that he took the position that ambulances should be an essential service. Accordingly, he agreed to work during the strike. Following the strike, a member of the union apparently obtained and disclosed to others a copy of a list of employees who had crossed the picket line during the strike. The applicant’s name was on that list. He alleges that, since that time, he has been subject to various forms of employment discrimination and harassment for not having participated in the strike.
[6] The applicant alleges that the harassment and other alleged discrimination are based on his creed and a violation of the Code. He states that his creed prevents him from removing medical care to those who need it. When asked to describe his creed, he states as follows:
My uncle, cousin and wife are all pastors leading congregations. I am a member and an executive of Horizons Inter faith group of approximately 30 different faiths, which produces two to four hours of interfaith television programming per week. They also hold events promoting inter faith and multiculturalism. My wife’s position places a great financial burden on our family. I do not take my faith lightly. I do not feel that I have the right to impose my beliefs on others and take a very low key approach when talking about my faith. It is my responsibility to uphold my creed and if others ask me to explain it and to be tolerant of others as it is against my creed to judge them. My basic creed is to treat others as I would treat myself. It states in the bible that if I ignore the suffering of others when it is my turn to pray my lord will ignore me. The story of the good Samaritan explains my creed quite clearly. Supporting verses in the bible are: Psalm 41-1, Lev 19-15, Prov 21-13 and Luke 1-37.
[7] In a previous Interim Decision, the Tribunal dismissed the applicant’s request for an expedited hearing: 2009 HRTO 1954.
REQUEST TO INTERVENE
[8] The union seeks leave to intervene. None of the other parties have filed submissions on this issue. In light of the union’s clear interest in the issues in this Application, it is granted intervention status.
REQUEST FOR INTERIM REMEDY
[9] The applicant asks that the Tribunal order, as an interim remedy, that he be placed in a vacant position working on Toronto Island. He states that he would be less likely to experience harassment on this shift, since paramedics generally work alone or with Toronto Fire Employees. He alleges that he should be awarded this position now, as an interim remedy before discrimination has been proven, because the position is only open for a limited period of time.
[10] In TA v. 60 Montclair, 2009 HRTO 269 at para. 23, the Tribunal held that the fundamental consideration in determining whether to award an interim remedy is
whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.