Fay Marc-Ali v. Kelly Graham, 2010 HRTO 1321

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fay Marc-Ali

Applicant

-and-

Kelly Graham

Respondent

-and-

Amalgamated Transit Union, Local 113

Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend

Date: June 10, 2010

Citation: 2010 HRTO 1321

Indexed as: Marc-Ali v. Graham

APPEARANCES

Fay Marc-Ali, Applicant ) Roger Rowe, Counsel

Kelly Graham, Respondent ) Steve Lavender, Counsel

Amalgamated Transit Union, Local 113, ) Ian J. Fellows, Counsel

Intervenor )

1The applicant filed this Application on July 27, 2009, under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination in employment on the basis of sex and colour. The allegations in her Application concern discipline that was imposed by her supervisor, the named respondent, for taking a break and then subsequently challenging the manner in which the supervisor treated her.

2The applicant is a member of Amalgamated Transit Union, Local 113 (“Local 113”). Local 113 filed a grievance on her behalf, following the procedure set out in the Collective Agreement. At Step 4, the “Grievance Mediation,” the grievance was settled. It would appear that the settlement was formalized by way of a letter from the TTC to Local 113.

3The respondent did not file a full Response to this Application, but sought early dismissal pursuant to section 45.1 on the basis of this settlement of the grievance. On December 24, 2009, the Tribunal issued an Interim Decision, 2009 HRTO 2265, indicating that it would schedule a one-day hearing to determine whether the Application should be dismissed on that basis. This was set for June 4, 2010.

4On June 2, 2010, two days prior to the teleconference, counsel, who had been recently retained by the applicant, filed an adjournment request. The request was based, in part, on the fact that the applicant had filed a duty of fair representation complaint, on which she is awaiting a determination, with the Labour Relations Board under s. 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, as amended (the “LRA proceedings”).

5The teleconference proceeded as scheduled and the Tribunal dealt with Local 113’s request to intervene and then heard argument on the adjournment request. It became apparent that the adjournment request was, in part, a request to defer these proceedings pending the outcome of LRA proceedings. It was on this basis that the matter was determined. Oral rulings on the three issues below were made at the teleconference. The parties were advised that written reasons would be issued on these rulings.

Request to Intervene

6Local 113 filed a Request to Intervene (Form 5) on the basis that: (1) the applicant is seeking to add five members of the bargaining unit as individual respondents; (2) it has an interest in the outcome of the legal issue; and (3) it “also has significant interest and substantial experience and expertise relating to the background, operation, and impact of the collective agreement between the Union and the TTC.”

7In addition, as became apparent during oral submissions in the recent teleconference, both at the LRA proceeding and before this Tribunal, the applicant takes the position that she did not agree to the terms of the settlement of her grievance, a factual assertion disputed by Local 113.

8A union almost always has an interest in a human rights application involving a member, and unless there are exceptional circumstances, the Tribunal will grant the bargaining agent intervenor status when requested. In this case, Local 113 has a compelling interest in the outcome of the request to dismiss. The respondent consents to the Union being granted intervenor status and the applicant did not oppose the intervention. The Request to Intervene is, accordingly, granted.

9Local 113 has not sought to intervene with respect to the merits of the Application, in the event that the Application is not dismissed pursuant to s. 45.1. At some point, however, it may seek to expand its request to intervene, particularly if its members are subsequently added as respondents. The extent of the intervenor’s participation in the Tribunal’s proceedings will be determined by the Tribunal at the appropriate time.

10In the event that the respondent proceeds with its request to dismiss the Application pursuant to s. 45.1, I will allow Local 113 to make submissions and, if necessary, adduce evidence and cross-examine witnesses called on behalf of the applicant.

DEFERRAL

11The applicant disputes that she agreed to the terms of the settlement reached between Local 113 and the respondent. This position was not clear in her original Application, but was clarified in her submissions to the Tribunal dated January 1, 2010 and again, by her counsel, in the oral submissions on the teleconference. This assertion forms part of her case in the LRA proceedings, and was specifically argued in the “consultation meeting” before the Labour Relations Board (“LRB”) held on May 13, 2010.

12Whether or not the applicant objected to the terms of the settlement is potentially a key issue in whether the test in s. 45.1 is met – namely, whether the other proceeding “appropriately” dealt with the substance of this Application. The applicant has indicated that she wishes to call viva voce testimony on this very issue in the proceeding before this Tribunal. In the event that the LRB makes a factual finding on that issue, however, the parties in this proceeding may be bound by it.

13On that basis, counsel for the applicant asks that the Tribunal defer its proceeding pending the outcome of the LRA proceeding. The respondent and intervenor did not object to me deferring these proceedings on this basis. I concur that this is an appropriate case on which to defer.

14This Application will therefore be deferred pending the completion of the LRA proceeding. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.

15In the event that the LRB makes specific factual findings with respect to the applicant’s position that she opposed the terms of the settlement of her grievance, it may not be appropriate or necessary for the Tribunal to rule on that factual issue. Accordingly, if and when this Application is brought back on, the parties should make written submissions on the issue of whether it is necessary to call viva voce testimony on this factual matter.

RELIEF FROM FILING RESPONSES

16In my earlier Interim Decision, I indicated that I would not consider the applicant’s (then) two Requests for Orders During Proceedings (Form 10) prior to the determination of the respondent’s request to dismiss. Since then, the applicant has filed additional Form 10s which, again, do not need to be addressed prior to determining the respondent’s request to dismiss. In the event that further Form 10s are filed on the applicant’s behalf, the respondent is relieved of filing responses to them unless directed to do so by the Tribunal.

17I am seized of this matter.