HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
James Ellis and the Applicants listed on Schedule “A”
Applicants
-and-
Petro-Canada Inc.
Respondent
Interim Decision
Adjudicator: Kaye Joachim
Indexed as: Ellis v. Petro-Canada
INTRODUCTION
1These transitional Applications were filed under section 53(3) and 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).
2This Interim Decision addresses a Request from the Ontario Human Rights Commission (the “Commission”) to intervene in the proceedings scheduled for hearing on June 7, 8, 9, 10, 11 and 21, 2010.
3The applicants are former employees of the corporate respondent who were given severance packages in or around May 2005 following a downsizing by the corporate respondent. The applicants all allege that the decision to terminate their employment and not redeploy them elsewhere in the corporate respondent was because of their age and or disability. Two applicants additionally allege sex and family status.
4In a prior Case Assessment Direction, I identified the issues in the hearing as:
What role if any did the applicant’s participation in the attendance management program or a modified work program, the applicant’s disability, if any, and/or the applicant’s age (or gender or family status if alleged in the original complaint) play in his or her placement on the employee ranking list?
Whether the applicant applied for jobs internally?
If the person applied for a position and was not a successful candidate, did his or her age, participation in attendance management program or modified work program, disability or perceived disability (or gender or family status if alleged in the original complaint) play a role?
5On May 18, 2010, the Commission filed a Notice of Commission Intervention under Section 37(2) of the Code (Form 6). Form 6 is a form used with respect to section 34 Applications, not with respect to transition Applications.
6On May 19, 2010, the Tribunal directed the Commission, if it wished to seek to intervene in the proceedings, to file a Form TR-3, in accordance with the Tribunal’s Rules of Procedure for Transitional Applications (the “Transitional Rules”):
7The Commission filed the Request to Intervene on May 19, 2010 and the respondent provided its responding submissions on May 21, 2010.
Does the Commission have the Right to Intervene in Transitional Application?
8Section 36 of the Code sets out who the parties to a proceeding before the Tribunal are:
The parties to an application under section 34 or 35 are the following:
In the case of an application under subsection 34 (1), the person who made the application.
In the case of an application under subsection 34 (5), the person on behalf of whom the application is made.
In the case of an application under section 35, the Commission.
Any person against whom an order is sought in the application.
Any other person or the Commission, if they are added as a party by the Tribunal.
9Section 37 of the Code sets out the Commission’s role as intervenor in section 34 applications:
- (1) The Commission may intervene in an application under section 34 on such terms as the Tribunal may determine having regard to the role and mandate of the Commission under this Act.
(2) The Commission may intervene as a party to an application under section 34 if the person or organization who made the application consents to the intervention as a party.
10The Commission takes the position that section 37(2) means that the Commission may intervene as a party on a transitional application if the applicant consents. I do not agree. Assuming that section 37(2) gives the Commission the “right” to intervene as a party when the applicant in a section 34 application consents, section 37 is silent with respect to the Commission’s right to intervene in transitional Applications.
11The Transitional Rules indicate that the Tribunal considers that intervention in transitional applications, as opposed to section 34 applications, is always at the discretion of the Tribunal:
14.1 The Tribunal may allow a person, organization or the Commission 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.
12In Boncori v. TRW Canada, 2009 HRTO 564 at paragraph 19:
The respondent takes the position that the statutory language makes it clear that section 34 applies to transition applications. I agree. However, in my view, the provisions of Part IV need to be adapted for the purpose of transition applications. For example, a person or organization may not be able to file a transition application on behalf of another person, though this is provided for in s. 34(5), and the Commission may not be able to intervene as of right in a transition application (and particularly in an application under s. 53(3)), though this is provided for in s. 37(2).
13I agree with the adjudicator in Boncori that, although the provisions of section 34 apply to transitional applications, they need to be adapted as appropriate. In my view, the Legislature did not intend that the Commission could intervene as a party in transitional applications as of right.
14The Legislature addressed the processing of those complaints within the Commission system as of June 30, 2008 in Part VI of the Code. The key provisions are sections 53 and 55:
- (1) This section applies to a complaint filed with the Commission under subsection 32 (1) of the old Part IV or initiated by the Commission under subsection 32 (2) of the old Part IV before the effective date.
(2) Subject to subsection (3) and despite the repeal of the old Part IV, during the six-month period that begins on the effective date, the Commission shall continue to deal with complaints referred to in subsection (1) in accordance with subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV and, for that purpose,
(a) the Commission has all the powers described in subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV; and
(b) the provisions referred to in clause (a) continue to apply with respect to the complaints, with necessary modifications.
(3) Subject to subsection (4), at any time during the six-month period referred to in subsection (2), the person who made a complaint that is continued under that subsection may, in accordance with the Tribunal rules, elect to abandon the complaint and make an application to the Tribunal with respect to the subject-matter of the complaint.
(4) The Tribunal shall make rules with respect to the practices and procedures that apply to an application under subsection (3) in order to ensure that the applications are dealt with in an expeditious manner.
(5) If, after the end of the six-month period referred to in subsection (2), the Commission has failed to deal with the merits of a complaint continued under that subsection and the complaint has not been withdrawn or settled, the complainant may make an application to the Tribunal with respect to the subject-matter of the complaint within a further six-month period after the end of the earlier six-month period.
(6) The new Part IV applies to an application made under subsections (3) and (5).
(7) Despite anything in the Freedom of Information and Protection of Privacy Act, at the request of a party to an application under subsection (3) or (5), the Commission may disclose to the party any information obtained by the Commission in the course of an investigation.
(8) No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.
- (1) This section applies to complaints that are referred to the Tribunal by the Commission under section 36 of the old Part IV before the effective date or during the six-month period referred to in subsection 53 (2).
(2) On and after the effective date, the new Part IV applies to a complaint described in subsection (1) as though it were an application made to the Tribunal under that Part and the Tribunal shall deal with the complaint in accordance with the new Part IV.
(3) The Commission,
(a) shall continue to be a party to a complaint that was referred to the Tribunal before the effective date; and
(b) subject to subsection (4), shall not be a party to a complaint referred to the Tribunal during the six-month period referred to in subsection 53 (2).
(4) The Commission shall continue as a party to a complaint that was referred to the Tribunal during the six-month period referred to in subsection 53 (2) if,
(a) the complaint was initiated by the Commission under subsection 32 (2) of the old Part IV; or
(b) the Tribunal sets a date for the parties to appear before the Tribunal before the end of the six-month period.
(5) Nothing in subsection (3) shall prevent,
(a) the Tribunal from adding the Commission as a party to a proceeding under section 36 of the new Part IV; or
(b) the Commission from intervening in a proceeding with respect to a complaint described in subsection (1).
15Essentially, the transitional provisions provided for a process whereby the complaints within the Commission system prior to June 30, 2008 could be completed before the Tribunal.
16The transitional provisions specifically refer to the role of the Commission in those complaints which were referred to the Tribunal by the Commission. In those cases, the Legislature maintained the role of the Commission as a party. However, the transitional rules are silent with respect to the Commission’s continuing role in complaints that were not referred by the Commission but are brought over by the complainants on their own. In those cases, in my view, the Legislature did not contemplate a continuing role for the Commission, except at the discretion of the Tribunal.
17Accordingly, I conclude that the Commission must seek leave to intervene in transitional Applications.
Test for Intervention
18Some of the factors the Tribunal has considered in determining whether to grant intervention include:
a. Whether the intervention will unduly delay or prejudice the determination of the rights of the parties;
b. Whether the intervenor has a significant interest in the issue on which intervention is sought;
c. Whether the intervenor is likely to provide assistance to the board that will not otherwise be provided: Jeppesen v. Ancaster (Town) Fire & Emergency Services (2001) 39 C.H.R.R. D/137, 2001 CanLII 26209 (ON H.R.T.)
19The Commission seeks to intervene as a party. I am persuaded that the Commission should be granted intervenor status for the limited purpose of introducing the statistical evidence obtained during the Commission investigation with respect to an alleged interplay between the respondent’s system of attendance management, performance evaluations and ranking lists adversely affected the applicants because of their age and/or disability. They may also call a witness to identify the witness statements being relied upon by the applicants.
20In a prior Case Assessment Direction, dated May 17, 2010, I ruled that the applicants could not rely upon the statistical evidence and analysis set out in the Commission brief unless the Commission investigator who prepared the brief was called as a witness. This Commission brief is, if I understand it, the primary basis for the multiple transitional Applications. In the particular circumstances of this proceeding, involving 19 Applications and a complex Commission investigation, I am satisfied that the Commission is the appropriate entity to call as a witness the Commission investigator who conducted the interviews and compiled the statistical evidence and analysis. This participation should not unduly delay the proceeding or prejudice the respondent.
21However, I am not satisfied that the Commission should be permitted to intervene as a party, call any other evidence, cross examine any witnesses, make any submissions or seek any remedies.
22The issues in these proceedings are primarily factual, rather than legal ones and I find that the Commission does not have a significant interest in the potential factual findings. I am also satisfied that, with the exception of the introduction of the witness statements and the statistical evidence and analysis as set out above, the Tribunal does not require the assistance of the Commission to determine the facts and issues in these Applications.
23Permitting the Commission to seek intervention as a party at this stage is likely to cause significant disruption and delay to these long scheduled hearing dates. I note that the respondent raised a concern about the role of the Commission at a Case Management meeting on November 23, 2009. The Commission was present at this meeting and indicated that it was not a party to the proceedings. The Commission also indicated that if they intended to seek a role in the proceedings they would do so promptly. The Commission did not seek any role in these proceedings until May 17, 2010, three weeks before the scheduled hearing.
Conclusion
24The Commission is granted intervenor status for the limited purpose of calling a witness to identify witness statements obtained during the Commission investigation relied upon by the applicants and to call a witness to identify the statistical evidence and analysis set out in the Commission brief.
Dated at Toronto, this 26^th^ day of May, 2010.
“Signed by”
Kaye Joachim
Alternate Chair
Schedule “A”
APPLICANTS
RESPONDENTS
James Ellis
T-0190-08
Petro-Canada Inc.
Frank Kasmara
TR-0511-09
Petro-Canada Inc.
William Brown
TR-0580-09
Petro-Canada Inc.
Robert Paterson
TR-0582-09
Petro-Canada Inc.
Richard Kelso
TR-0584-09
Petro-Canada Inc.
George Heelis
TR-0585-09
Petro-Canada Inc.
Thomas Saunders
TR-0617-09
Petro-Canada Inc.
Robert Waddell
TR-0618-09
Petro-Canada Inc.
Radcliffe Meikle
TR-0623-09
Petro-Canada Inc.
William Michaluk
TR-0626-09
Petro-Canada Inc.
Steven Bowie
TR-0632-09
Petro-Canada Inc.
Helen Solski
TR-0652-09
Petro-Canada Inc.
Susan Cassady
TR-0688-09
Petro-Canada Inc.
Robert March
TR-0695-09
Petro-Canada Inc.
Dennis Reeves
TR-0699-09
Petro-Canada Inc.
Morris Kocken
TR-0712-09
Petro-Canada Inc.
Richard Dimock
TR-0716-09
Petro-Canada Inc.
William Rainey
TR-0759-09
Petro-Canada Inc.
Robert Kreuger
TR-0763-09
Petro-Canada Inc.