HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bi Ying Lam
Applicant
-and-
Ontario Ombudsman
Respondent
A N D B E T W E E N:
Bi Ying Lam
Applicant
-and-
COPE Ontario, COPE Local 343, Janice Best, Elizabeth Fong and Sean Clancy
Respondents
INTERIM DECISION
Adjudicator: Kathleen Martin
Indexed as: Lam v. Ontario Ombudsman
1Tribunal File 2009-02569-I is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) alleging discrimination in employment on the basis of race, colour and ethnic origin (the “Ombudsman Application”). The Application is scheduled for hearing on September 27, 28 and 29, 2010.
2Tribunal File 2009-02856-I is an Application filed under section 34 of Part IV of the Code, alleging discrimination in vocational association on the basis of race, place of origin and ethnic origin (the “Union Application”). The Union Application is scheduled for hearing on October 6 and 7, 2010.
2This Interim Decision addresses the Union’s request to Intervene in the Ombudsman Application as well as requesting submissions on whether or not the Applications should be heard together.
BACKGROUND
3Both Applications arise out of the applicant’s employment with the Ombudsman. The applicant’s employment was terminated on November 26, 2008 during her probationary period. The union was the applicant’s bargaining agent while she was employed and among other things represented the applicant in a termination grievance, which was ultimately withdrawn.
3The union states that it wishes to intervene in the Ombudsman Application so that it may raise any “issues” regarding the conduct of the union and its representatives and any issues relating to remedy.
4The applicant objects to the Union’s intervention. She submits that if they are permitted to attend the hearing they will have an unfair advantage since they will have an opportunity to review “evidence” relevant to the hearing against them and she will be forced to face two representatives (presumably because both the Ombudsman and union will be represented by counsel).
5The Ombudsman does not object to the union’s intervention but seeks that it be granted a “non-party intervenor “ status and that its role be limited to that of an observer and submissions on the issue of remedy. In correspondence enclosing their submissions on intervention by the union, the Ombudsman notes that, given that there may be some significant overlap between the issues in the Application against it and the Union Application, serious consideration should be given to consolidating the Applications.
Union’s Request to Intervene
4In Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, the Tribunal stated:
A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.
5In the circumstances of this case, I am satisfied that the union has an interest in the issues raised in the Ombudsman Application. The union was the applicant’s bargaining agent at the relevant time. While the union is no longer representing the applicant (having decided not to pursue the termination grievance), the applicant is seeking a remedy that includes reinstatement in her employment. The union’s Request to Intervene is therefore granted.
6I do not find it appropriate to provide any further order regarding the role of the union at this time. The extent and nature of the union’s participation at the hearing will be determined by the Vice-chair assigned to hear the Application.
Request for Submissions
7The Tribunal requests submissions from the parties in both Applications as to whether both Applications should be heard together. Any party who wishes to make submissions should provide their submissions in writing to the other parties and file the same with the Tribunal along with a Statement of Delivery (Form 23) within 14 days of the date of this Interim Decision.
8The parties may wish to have regard to Rule 1.7 (d) of the Rules of Procedure and the Tribunal’s caselaw on consolidating or hearing cases together. See, for example, Persuad v. Toronto District School Board, 2008 HRTO 25; Knibbs v. Brant Artillery Gunners Club, 2009 HRTO 1418). The Tribunal’s caselaw is available at www.canlii.org.
[9] I am not seized.
Dated at Toronto, this 18th day of May, 2010.
“Signed By”
Kathleen Martin
Vice-chair