Mahesparan v. Kee, 2009 HRTO 814

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kothanayake Mahesparan

Applicant

-and-

Debbie Kee, Kevin Hui, Teddianne Beagan

Respondent

interim DECISION

Adjudicator: Jay Sengupta

Date: June 10, 2009

Citation: 2009 HRTO 814

Indexed as: Mahesparan v. Kee

1This is an Application filed on January 19, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that she has suffered discrimination in the area of employment on the basis of race and colour and she has named three personal respondents. CUPE Local 1356 has been named as an affected party.

2On March 6, 2009, the Tribunal sent the Application to the respondents by regular mail at the address provided by the applicant, together with a direction to respond no later than thirty-five (35) days from that date, in accordance with the Tribunal’s Rules of Procedure. Under Rule 1.22 of the Tribunal’s Rules, a document delivered by mail is deemed received five (5) days after the postmark date.

3It has now been more than ten (10) days since the Response was due. Responses have been received for Debbie Kee and Kevin Hui. The Tribunal has not received a Response from one of the personal respondents, Teddianne Beagan, nor has its correspondence been returned. This Interim Decision addresses this respondent’s failure to file a Response.

4CUPE Local 1356 has filed a Request to Intervene to which the applicant has had a chance to respond. This Interim Decision also addresses the union’s intervention request.

Failure to File a Response by Teddianne Beagan:

5A Tribunal application is a legal proceeding which, if a violation of the Code is found, may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code. Failure to file a Response or participate in a Tribunal proceeding may lead to orders against individual and corporate respondents without their participation. The respondent’s attention is drawn to Rule 5.5 of the Tribunal’s Rules of Procedure, which reads as follows:

5.5 Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

6The applicant has provided an address and phone number for the respondent. The Tribunal shall send a copy of this Interim Decision to the respondent by regular mail, courier and fax.

7If the respondent, Teddianne Beagan, wishes to participate in this proceeding, she shall file a Response by June 19, 2009, together with an explanation of why the Response was not filed in accordance with the March 6, 2009 Notice. If a Response is not received, the Tribunal may proceed without further notice to this respondent and may take any or all of the steps out in Rule 5.5.

Request by Union to Intervene:

8CUPE Local 1356 is the bargaining agent for the caretakers, cleaners and trades at York University and the applicant is a member of the union. The union indicates that it has knowledge of the history of grievances, their resolution and expertise regarding the conditions of employment in the workplace. It states that it disagrees with the characterization of the events that involved union representatives and wishes to participate in order to protect the collective agreement and ensure the integrity of the grievance procedure and arbitration process.

9The Tribunal’s Rule 11.2 provides:

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. The Tribunal will determine the extent to which an intervenor will be permitted to participate in a proceeding.

10The 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.

11In this case, the Application appears to raise issues that are of general interest to the union. CUPE Local 1356 is entitled to participate in the proceedings. The Request to Intervene is granted. The extent of the union’s participation in any future proceedings will be determined by the Vice-chair or Member who presides over those proceedings. The presiding adjudicator will be in the best position to address the applicant’s concerns about the nature and scope of any evidence that the union may have to offer.

12I am not seized.