Savard v. Toronto (City), 2009 HRTO 2262

Human Rights Tribunal of Ontario

B E T W E E N:

Michael Savard

Applicant

-and-

City of Toronto

Respondent

-and-

Canadian Union of Public Employees, Local 79

Intervenor

Michael Savard

Applicant

-and-

Toronto Civic Employees Union, Local 416 and Dave Hewitt

Respondents

-and-

Canadian Union of Public Employees, Local 79

Intervenor

INTERIM DECISION

Adjudicator: Mark Hart

Date: December 24, 2009

Citation: 2009 HRTO 2262

Indexed as: Savard v. Toronto (City)

1These are two related Applications made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), with the Application against the City of Toronto (the "City") dated February 2, 2009, and the Application against the Toronto Civic Employees Union, Local 416 ("Local 416") and Dave Hewitt dated March 18, 2009. The underlying complaints were both filed with the Ontario Human Rights Commission on March 13, 2008.

2The purpose of this Interim Decision is to address the request by the Canadian Union of Public Employees, Local 79 ("Local 79") for intervenor status in relation to both Applications and also to address certain case management issues.

Request for Intervenor Status

3Local 79 delivered a Request to Intervene in both Applications on November 24, 2009. No Response to Request to Intervene form was filed by any of the parties within the 21-day timeframe set out in the Tribunal's Rules of Procedure for Transitional Applications Under Section 53(3) and 53(5) of the Human Rights Code.

4The Request to Intervene is granted. In the Applications, the applicant, who is a member of Local 416, seeks accommodation on the basis of disability in a position that falls within the scope of Local 79's agreements with the City. Local 79 obviously has an interest in this aspect of the remedy being sought by the applicant.

5I am aware of subsequent correspondence from the applicant's representative taking the position that Local 79 should not be permitted to lead any evidence and should accept the record as it is, and its role should be limited to lending assistance to the Tribunal by way of oral argument to put forward its position as to how it is affected by the subject matter of the Applications. The applicant's representative also takes issue with the fact that Local 79 did not propose terms for its intervention in the material filed.

6I first note that the Request to Intervene form requires a person seeking intervenor status to set out the terms upon which it seeks to intervene (see Question A7). While Local 79 states on the form that this question was to be addressed in Schedule "A", this schedule does not in fact propose the terms for intervention. I also note that the submissions made by the applicant's representative properly should have been raised by filing a Response to Request to Intervene within 21 days as provided for in the Rules, rather than in correspondence after that deadline.

7Local 79 has an interest in the remedy sought by the applicant in this proceeding and may properly be entitled to lead evidence in this regard. However, the extent of Local 79's participation in the proceeding will be determined by the Vice-chair or Member who presides over the hearing.

Case Management

8By letter dated October 29, 2009, the Tribunal scheduled a one-day hearing on March 24, 2010, to address certain preliminary issues that had been raised by the respondents to both Applications, and a schedule for the parties to file submissions on these preliminary issues was set.

9Unfortunately, the applicant's representative advised that he was no longer available on the scheduled date, and a considerable amount of time was spent trying to find a new hearing date that was available to all parties. Ultimately, all parties were available for the hearing on May 13, 2010, and a letter confirming this new date was sent out by the Tribunal on December 9, 2009. While the letter states that the re-scheduled hearing would be on the preliminary issues raised by the respondents, it also set certain dates for the disclosure and filing of material relating to the merits of the Applications. In response to an objection raised by the applicant's representative, a further letter was sent by the Tribunal dated December 21, 2009 stating that the parties should be prepared to address both the preliminary issues and the merits of the Applications at the hearing on May 13, 2010. This resulted in further correspondence from the applicant's representative renewing his objection to the preliminary issues and the merits of the Applications being addressed at the same time.

10While it is not unusual for the Tribunal to schedule a hearing date both to address preliminary issues and to proceed with the hearing on the merits of an Application, each proceeding must be evaluated in the context of its own particular circumstances in order to determine the most fair, just and expeditious manner of proceeding. In the context of this particular proceeding and in light of the nature of the preliminary issues raised by the respondents, it is my view that the most fair, just and expeditious manner of proceeding is to hear the preliminary issues only on May 13, 2010, and not proceed with the hearing on the merits of the Application at that time. As a result, the timelines set out for the disclosure and filing of material in the Tribunal's correspondence dated December 9, 2009 are suspended. Further direction may be given to the parties regarding the disclosure and filing of material on the merits of the Applications following disposition of the preliminary issues, depending upon the outcome of the hearing on those issues. The timelines set out in the Tribunal's correspondence dated October 29, 2009 for the filing of submissions on the preliminary issues remain in effect.

ORDER

11For all of these reasons, I hereby make the following order:

a) Local 79 is granted intervenor status in this proceeding; and

b) The hearing scheduled for May 13, 2010, shall only address the preliminary issues raised by the respondents and shall not deal with the merits of the Applications, and the timelines set out for the disclosure and filing of material in the Tribunal's correspondence dated December 9, 2009 are suspended. The timelines set out in the Tribunal's correspondence dated October 29, 2009 for the filing of submissions on the preliminary issues remain in effect.

12I am not seized of this matter.