Rastin v. Electro-Motive Canada, 2010 HRTO 1793

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Greg Rastin

Applicant

-and-

Electro-Motive Canada Co., Steve Rankin and

National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW Canada) Local No. 27

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: September 9, 2010

Citation: 2010 HRTO 1793

Indexed as: Rastin v. Electro-Motive Canada

1The applicant filed an Application on February 16, 2010 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in the area of employment on the basis of disability.

BACKGROUND

2In his Application the applicant alleges that his manager, the personal respondent Steve Rankin (“Rankin”), discriminated against him in the assignment of overtime work because of his disability.

3The Application identifies the applicant’s union, Canadian Auto Workers, as potential affected by this proceeding. The CAW was provided with notice of the Application and an opportunity to file a request to intervene.

4Mr. Rankin filed a Response on May 17, 2010. This Response confirms that the applicant’s employer is Electro-Motive Canada Co. (“EMC”) and that the allegations made in the Application pertain to circumstances directly related to the applicant’s employment. Although the Response indicates that EMC is authorized to act as Rankin’s representative, EMC does not acknowledge any other role in the Application. In his Response, Mr. Rankin submits he has been improperly named and requests that the Application be dismissed as against him. He argues that he was “simply executing his duties as a manager of EMC” and therefore should not be named in his personal capacity.

5The Response clarified that the proper name of the applicant’s union is the National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW Canada) Local No. 27 (“CAW Local No. 27”) and also identified the union as an affected party. The Tribunal delivered the Response on the CAW Local No. 27 on May 18, 2010. The CAW Local No. 27 has not sought leave to intervene and the time for doing so has elapsed.

6The applicant did not file a Reply to the Response. On May 31, 2010, the applicant filed a Request for an Order asking that his employer, EMC, be added as a party to the Application. The applicant submits that EMC is a proper party because Mr. Rankin was acting on behalf of the employer.

7On June 28, 2010, the applicant filed a Request for an Order asking that his union, CAW Local No. 27, be added as a party to the Application, and this Request was served on EMC on the same date and served on CAW Local No. 27 on July 19, 2010. The applicant submits that CAW Local No. 27 is a proper party because the applicant learned that the authorized representative of CAW Local No. 27 participated in the alleged discriminatory decision regarding the overtime assignment.

8No Response to either Request has been received from EMC or CAW Local No. 27 and the time for doing so has elapsed.

DECISION

9Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that in order to ensure a fair, just and expeditious resolution of any matter before it, the Tribunal may add or remove a party.

10In Smyth v. Toronto Police Services, 2009 HRTO 1513, the Tribunal applied the following questions when considering a request to add a respondent:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

11The application of the first stage involves considering whether the Application asserts allegations that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the alleged conduct, and whether the alleged conduct of the individual respondent is a central issue in the proceedings. Lastly, a variety of factors with respect to fairness may be considered, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.

12All of the above-noted factors present in favour of adding EMC and CAW Local No. 27. Based on the information provided in the Application, Response and Requests, it is apparent that the concerns raised in the Application relate to alleged workplace discrimination with respect to overtime assignment which was co-ordinated according to the Collective Agreement between the employer and the union. The Response states that the applicant’s union agreed with the employer’s decision regarding the applicant’s overtime assignment. With respect to the issue of fairness, the applicant has made the Request to add EMC and CAW Local No. 27 early in the process and these proposed respondents have not responded or asserted any prejudice. I am also persuaded that the applicant may be prejudiced if those directly involved in the alleged discriminatory decision are not party to the Application. Accordingly, I order that EMC and be CAW Local No. 27 added as respondents to this Application and the style of cause be amended to reflect the same.

13EMC and CAW Local No. 27 are directed to file Responses within 35 days of date of this Interim Decision and to specifically indicate whether or not they agree to participate in mediation.

14I note that Mr. Rankin consents to mediation. The applicant did not indicate whether or not he agreed to participate in mediation.

15The Tribunal will not determine the request to remove Mr. Rankin without giving the applicant the opportunity to make submissions in this regard. As such, the applicant is ordered to deliver and file written submissions with the Tribunal and the respondents within 14 days of this Interim Decision regarding (i) whether or not he agrees to participate in mediation and (ii) his position with respect to the request to remove the Mr. Rankin as a respondent to the Application.

16In summary, the Tribunal makes the following Order:

a) that the applicant’s employer, Electro-Motive Canada Co., be added as a party to this Application and the style of cause amended accordingly;

b) that the applicant’s union, National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW Canada) Local No. 27, be added as a party to this Application and the style of cause amended accordingly;

c) EMC and CAW Local No. 27 are directed to file Responses within 35 days of date of this Interim Decision, and to specifically indicate whether or not they agree to participate in mediation; and

d) that the applicant deliver and file written submissions with the Tribunal and the respondents within 14 days of this Interim Decision regarding (i) whether or not he agrees to participate in mediation and (ii) his position with respect to the request to remove Mr. Rankin as respondent to the Application.

17I am not seized of this matter.