DeSousa v. Toronto (City), 2010 HRTO 370

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Benjamin Rui DeSousa

Applicant

-and-

City of Toronto

Respondent

-and-

Canadian Union of Public Employees, Local 416

Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend

Date: February 19, 2010

Citation: 2010 HRTO 370

Indexed as: DeSousa v. Toronto (City)

1The applicant filed this Application on September 14, 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 disability and reprisal. In his Application, the applicant advised that he was a member of the Toronto Civic Employees Union, Local 416 (“CUPE”), which was then given notice of the proceedings.

2Following receipt of the Application, CUPE filed a Request to Intervene (Form 5) and the respondent filed a Response in which it made a request for early dismissal of the Application. This Interim Decision addresses CUPE’s request to Intervene and the respondent’s request for early dismissal.

REQUEST TO INTERVENE

3CUPE’s bases its request to intervene on the following two factors: (1) it has represented the applicant in a number of grievances and settlements entered into; and (2) the Application raises issues of on-going harassment in the workplace, which is governed by a collective agreement between it and the respondent.

4The applicant and the respondent did not take advantage of their opportunity under Rule 11.4 to file a response to the Request to Intervene, and have therefore neither agreed nor objected to the proposed intervention.

5A 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, CUPE can provide the Tribunal with assistance in determining what grievances were filed, what factual matters they relate to, what, if anything, went to arbitration and what settlements were reached. The Request to Intervene is granted.

6CUPE has requested full standing in this proceeding. The extent of the intervenor’s participation in the Tribunal’s proceedings will be determined by the Tribunal at each stage of the proceeding. However, for the purpose of the hearing on the early dismissal request discussed below, CUPE will be permitted to call evidence, question witnesses and make submissions. Moreover, CUPE is directed to file with the Tribunal copies of all grievances it has filed on the applicant’s behalf relating to the subject matter raised in the Application and any documents relating to the disposition of those grievances that are not already included in the materials filed by the respondent.

REQUEST FOR EARLY DISMISSAL

7The facts of this Application span the period from 1999, the year in which the applicant was hired, until March 2009, when he asserts he resumed his regular duties. Although he advised that the facts of his Application were not the subject matter of another proceeding (or proceedings) that is (are) now completed, he did attached a number of what appear to be settlements of grievances entitled “Last Chance Agreements” to his Application that also span this period. He also made reference to complaints made to the Ontario Human Rights Commission (the “Commission”).

8The respondent seeks early dismissal of this Application on the basis that the applicant fully and finally resolved all of the allegations contained within the Application through Minutes of Settlement, and that to proceed would be, among other things, an abuse of process.

9In addition, the respondent relies on s. 45.1 of the Code:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

10The respondent also notes that with respect to the two complaints to the Commission, one was ended with a decision to not deal with the complaint and the other was withdrawn by the applicant. The respondent asserts that the applicant should not now “be allowed to raise the same issues as were in the previous Complaints.” The respondent relies on s. 53(8) of the Code, which states:

53(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.

11In his Reply, the applicant states that his one complaint to the Commission was dismissed solely because he belonged to a union, not on its merits. He wants the Tribunal to hear the subject-matter of the complaint on the merits. Moreover, with respect to the fact that grievances were filed on his behalf, he has had to wait a long time until arbitrations or settlement hearings addressed his matters. Moreover, he continues to feel discriminated against and alleges that he continues to be the subject of reprisals for having previously asserting his rights under the Code.

12It is not clear whether all or only a portion of the facts alleged in the Application were the subject-matter of grievances and/or complaints to the Commission. Moreover, it is not clear whether there is a current grievance (or grievances) concerning the most recent alleged conduct and, if so, whether this Application should be deferred pending the conclusion of that grievance.

13Finally, although delay is not specifically raised by the respondent, it is not clear whether the Tribunal has jurisdiction to deal with matters which occurred outside the time limit set out in to s. 34(1) of the Code. Section 34 states in part:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under s. 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by that delay.

14It is appropriate for the Tribunal to determine, as a preliminary matter, the following issues:

• Whether to proceed on the allegations would be an abuse of process;

• Whether another proceeding has appropriately dealt with the substance of all or a portion of the Application (s. 45.1);

• Whether the matters alleged formed part of a complaint or complaints to the Commission (s. 53(8));

• Whether deferral to another proceeding is appropriate; and/or

• Whether a portion of the Application is outside the time limits set out in the Code, and, if so, whether that delay was incurred in good faith and no substantial prejudice will result (s. 34(1)).

15Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties the opportunity to make oral submissions. Accordingly, the Registrar will schedule a half-day in-person hearing to consider whether the Application should be dismissed, in whole or in part, on the basis of any of the above, or whether it should be deferred. The parties should be prepared to address what portions of the Application would be affected by the application of these legal principles.

16If a party intends to call any witnesses or rely upon any documents not already included in the Tribunal’s file, it shall deliver such materials to the other parties and file them with the Tribunal no later than 14 days before the scheduled hearing. Any case law relied upon by the parties, shall be delivered to the other parties seven days before the scheduled hearing.

17I am not seized of this matter.