HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elie Faysal

Applicant

-and-

General Dynamics Land Systems - Canada

Respondent

-and-

Canadian Auto Workers’ Union - Canada

Intervenor

-and-

Canadian Civil Liberties Association

Intervenor

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: June 3, 2011

Citation: 2011 HRTO 1072

Indexed as: Faysal v. General Dynamics Land Systems – Canada

WRITTEN SUBMISSIONS

Elie Faysal, Applicant ) Anne Marie Frauts, Counsel

General Dynamics Land ) Margaret Szilassy, Counsel

Systems - Canada, Respondent )

Canadian Auto Workers’ ) Lewis Gottheil, Counsel

Union Canada, Intervenor )

Canadian Civil Liberties Association, Intervenor ) Kukanya Pillay, Counsel

OVERVIEW

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which he alleges discrimination in employment on the basis of place of origin and citizenship.

2The respondent is a Canadian subsidiary of General Dynamics Land Systems, a global supplier of land and amphibious armoured vehicles. The applicant is employed as a Quality Assurance Inspector in the respondent’s manufacturing plant in London, Ontario.

3The applicant is a dual citizen of Canada and Lebanon. He has worked for the respondent and its predecessor since 1978. He is a member of the Canadian Auto Workers’ Union (“Union”) and the terms of his employment are governed by a collective agreement between the respondent and the Union.

4The respondent manufactures military vehicles for, among others, the United States Department of Defense. In order to do this, the respondent states that it must have access to materials, including blueprints, data, equipment, plans, and information (collectively referred to as “Controlled Goods”) that are controlled by legislation in both Canada and the United States.

5The legislative framework is somewhat complex and, as it is not necessary for the purposes of this Interim Decision, I will not review it in detail at this stage. Briefly put, there is a Memorandum of Understanding between Canada and the United States establishing a joint certification program. Under the joint certification program, Canadian companies may be eligible to access Controlled Goods in order to manufacture defence articles. Their access to Controlled Goods is governed, in part, by Canadian federal regulations, including the Technical Data Control Regulations, SOR/2001-32 (“TDI Regulations”). The TDI Regulations incorporate the United States’ International Traffic In Arms Regulations, 22 C.F.R. Parts 120 – 130 (“ITAR”).

6The respondent states that the application of Canadian and American legislation, specifically the ITAR, limits its ability to share important information with employees, such as the applicant, who are nationals or dual citizens of particular countries.

7Section 126.1 of the ITAR stipulates that, absent specific authorization, dual nationals and third country nationals from specific countries may not engage in the manufacture of defence articles or services using the United States’ technical information. Lebanon is among the “embargoed countries” listed at section 126.1 of the ITAR.

8The respondent states that, absent specific authorization from the United States State Department, it may not give the applicant access to ITAR-controlled technical information. It states that a similar requirement is also part of its contractual obligations with the Canadian government.

9There appears to be no dispute that the applicant requires access to Controlled Goods in order to do his job as a Quality Assurance Inspector. Because of ITAR requirements, the applicant could no longer access Controlled Goods as of approximately 2007. The respondent placed the applicant on a paid furlough in 2007.

10The respondent eventually secured a time-limited authorization for the applicant to access ITAR-controlled information, and the applicant returned to active employment from January 5, 2009 to March 17, 2009. The authorization expired in March 2009 and the applicant has been on paid furlough since that time. During the paid furlough, the applicant received his full salary and benefits. There is, however, a dispute between the parties as to whether the applicant was appropriately compensated for overtime work or loss of opportunity to do overtime work.

The allegations

11The applicant alleges that the respondent’s application of the ITAR has had a discriminatory and differential effect on him because of his place of origin and citizenship. He also alleges that the respondent breached minutes of settlement entered into by the parties in 2007. In particular, he alleges the respondent breached the minutes of settlement because it:

a. failed to take reasonable steps to attempt to (i) ameliorate the impact of differential treatment on him and (ii) secure lawful permission to minimize or eliminate differential treatment, as required by the Minutes of Settlement;

b. denied him overtime pay, taking the position that the applicant would not have been able to work overtime following a motor vehicle accident in September 2007.

12The respondent denies the allegations of discrimination. It also denies any breach of the minutes of settlement.

13The respondent states that it behaved in good faith and in compliance with its legal obligations, that it made reasonable efforts to minimize or eliminate any differential impact on the applicant, and that it accommodated him by providing him with paid furlough. It states that the determination of overtime pay would be more appropriately dealt with through a grievance pursuant to the collective agreement.

Preliminary issues

14The matter is scheduled for hearing in London, Ontario on June 13 and 14, 2011. A number of preliminary issues have been raised:

a. The Union has sought leave to intervene;

b. The Canadian Civil Liberties Association has sought leave to intervene;

c. On May 17, 2011, the applicant filed a Notice of Constitutional Question with the Tribunal;

d. On May 25, 2011, the applicant filed a Request for an Order During Proceedings seeking production of contracts referred to in the Response and the “sorted payroll register” for Department 197 and 170 for 2007;

e. On May 26, 2011, the respondent filed a Request for an Order During Proceedings seeking to strike the Notice of Constitutional Question and requesting an order enforcing the minutes of settlement; and

f. On May 27, 2011, the respondent filed correspondence objecting to a witness, Michael Lerner, proposed by the applicant.

Summary of conclusions

15For the reasons that follow, I conclude:

a. The respondent’s request to strike the Notice of Constitutional Question and to enforce the minutes of settlement in relation to the Notice of Constitutional Question is denied;

b. The Union’s request to intervene is allowed. The scope of the intervention will be determined prior to the hearing, once the Union has provided summaries of the expected evidence of its intended witnesses;

c. The Canadian Civil Liberties Association’s request to intervene is allowed in part; and

d. The parties are directed to provide further written submissions regarding the scope of the Union’s intervention, the applicant’s Request for production, the proposed evidence of Michael Lerner, and any concerns regarding a reasonable apprehension of bias.

NOTICE OF CONSTITUTIONAL QUESTION

16Rule 4 of the Tribunal’s Rules of Procedure states:

Where a party intends to question the constitutional validity or applicability of any law, regulation, by-law or rule or where a party claims a remedy under s. 24(1) of the Charter of Rights and Freedoms, in relation to an act or omission of the Government of Canada or the Government of Ontario, a Notice of Constitutional Question must be delivered to the Attorneys General of Canada and Ontario and all other parties and filed with the Tribunal as soon as the circumstances requiring the notice become known and, in any event, at least 15 days before the question is to be argued.

17The applicant filed a Notice of Constitutional Question (“Notice”) on May 17, 2011. The Notice states that the applicant intends to question the constitutional applicability, validity and effect of:

a. sections 6(1)(e) and 6(1)(f) of the Technical Data Control Regulations, SOR/86-345, the Controlled Goods Regulation, SOR/2001-32 of the Defence Production Act, RSC 1985, c.D-1, as amended, and section 3(1)(c) of the Export Permits Regulation SOR/97-204 of the Export and Import Permits Act, R.S.C. 1985, c.E-19 as they relate to “controlled goods”;

b. the constitutional applicability, validity and effect of those contracts entered into by the respondent and Her Majesty in Right of Canada that contractually oblige the Respondent to comply with ITAR.

18On May 25, 2011, the respondent filed a Request for an Order During Proceedings seeking to strike the Notice and enforce minutes of settlement the parties entered into in 2007. The respondent’s Request is based on the following grounds:

a. By virtue of minutes of settlement between the parties, the respondent argues that the applicant is barred from raising any claim arising out of his employment with the respondent prior to October 19, 2007. The respondent further argues that the Notice raises issues that are barred by the minutes of settlement. As I understand it, the respondent is seeking an order striking the Notice as enforcement of the release provisions of the minutes of settlement;

b. The Notice improperly expands the scope, complexity, and costs of the Application; and

c. The constitutional questions raised in the Notice are moot by virtue of amendments to the ITAR published in the U.S. Federal Registry on May 16, 2011, which will eliminate the separate licensing requirement for dual nationals effective August 15, 2011.

19The respondent also objects to the timing of the Notice. The respondent argues that the applicant has, for the first time in this proceeding, taken issue with the constitutional validity and effect of Canadian legislation. It argues that the applicant ought not, at this stage of the proceeding, be allowed to introduce such issues.

20Along with a number of other individuals, the applicant filed an earlier application with the Tribunal. The respondent’s predecessor, General Motors Defence, a division of General Motors of Canada Limited, was named as the respondent in that earlier application. The earlier application also raised issues related to discrimination on the basis of citizenship. The earlier application was resolved and the parties entered into minutes of settlement. The minutes of settlement contain release provisions, which bars the applicant from (among other things) making any claim arising out of the applicant’s employment or matters that were or could have been raised in the earlier application.

21I note that the applicants in the earlier application had filed a Notice of Constitutional Question: see Sinclair v. General Motors Defence, a division of General Motors of Canada Limited, 2006 HRTO 35.

22The respondent’s request to strike the Notice of Constitutional Question is rejected at this stage of the proceeding.

23I cannot, at this stage of the proceeding, determine whether the constitutional issues identified in the Notice are moot and, if they are, whether it would nevertheless be appropriate for me to exercise my discretion to consider the issues in the circumstances. First, as this matter is scheduled to be heard before the legislative changes come into effect, it is not clear to me that the issues raised in the Notice are moot at this time. In any event, while the applicant alludes to the upcoming legislative changes in his materials, he has not yet had an opportunity to make fulsome submissions on the mootness issue.

24The Application raises a number of complex factual and legal issues. The Tribunal will be required to consider the application of a complex legislative framework and its impact. At this stage of the proceedings, I cannot conclude that the Notice improperly expends the scope, complexity and costs of the Application.

25The respondent argues that the minutes of settlement preclude the applicant from relying on incidents that occurred up to 2007, when the minutes of settlement were executed. While the minutes of settlement may impact the applicant’s ability to make allegations or claim remedies regarding incidents prior to 2007, the Notice seems to raise ongoing constitutional issues that go beyond the terms of the release. I am not satisfied that the minutes of settlement are a basis for striking the Notice.

26Finally, in response to the respondent’s concerns about the timing of the filing of the Notice, Rule 4 of the Tribunal’s Rules of Procedure require the Notice to be filed “as soon as the circumstances requiring the notice become known” and, in any event, at least 15 days before the question is to be argued. I note that the Notice was filed more than 15 days before the scheduled hearing of this matter.

27If the respondent believes that it is prejudiced by the timing of the Notice, it may file a Request for an Order During Proceedings setting out the prejudice and requesting an adjournment of the proceedings. In the circumstances, the timing of the filing of the Notice is not a basis to strike the Notice.

28My finding is without prejudice to the respondent’s ability to object at the hearing to argument or evidence on the basis that it is outside the scope of the Application or that it is barred by virtue of minutes of settlement.

REQUESTS FOR LEAVE TO INTERVENE

General principles

29Requests to intervene in matters before this Tribunal are governed by Rule 11. With respect to organizations that are not the Ontario Human Rights Commission, the following portions of Rule 11 apply:

11.1 The Tribunal may allow a person or organization 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.

[…]

11.3 A Request to Intervene must include an answer to each question in Form 5 and must:

a) describe the issue(s) that the person or organization wants to address;

b) explain the proposed intervenor’s interest in the issue(s) and its expertise, if any, regarding the issue(s);

c) set out the proposed intervenor’s position, if any, on each of the issues raised in the Application and the Response; and

d) set out all the material facts upon which the proposed intervenor will rely.

30The Tribunal has the discretion to grant intervention status to an organization that complies with the above Rules. In exercising its discretion, the Tribunal is generally guided by the following non-exhaustive considerations:

(a) whether the intervention will unduly delay or prejudice the determination of rights of the parties to the proceeding;

(b) whether the applicant has a significant interest in the issue on which intervention is sought; and

c) whether the applicant is likely to provide assistance to the Tribunal that will not otherwise be provided.

See Jeppersen v. Ancaster (Town), [2001] O.H.R.B.I.D. No. 1, and Carasco v. University of Windsor, 2011 HRTO 630.

31The Tribunal has generally granted intervenor status to unions seeking to intervene in human rights applications alleging discrimination in employment, where the application is brought by a member of the union’s bargaining unit. The Tribunal has stated that, absent exceptional circumstances, the applicant’s bargaining unit is granted intervention status in Tribunal proceedings where it requests it: see Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131.

The Union

32In an earlier Interim Decision, dated May 24, 2011 (2011 HRTO 988), the Tribunal granted a Request to Intervene (“Request”) filed by Union. In the Request, the Union indicated that it sought the right to call evidence, cross-examine witnesses and make oral and/or written argument regarding issues relating to compensation for overtime work or opportunity, and accommodation of the applicant and potential future measures of accommodation, in the event a discriminatory practice is established. In that Interim Decision, the Tribunal noted that neither party to this Application had responded to the Union’s Request.

33In fact, both the respondent and the applicant had filed Responses to the Request. The respondent filed a Response to the Request on April 28, 2011, consenting to the Request. The applicant filed a Response to the Request on May 18, 2011 objecting to the Request and, in the alternative, objecting to the scope of the intervention sought by the Union. Through an administrative error, those materials were not before the Tribunal at the time it rendered the Interim Decision.

34Rule 26.9 of the Tribunal’s Rules of Procedure states that the Tribunal may reconsider a decision on its own initiative where it is advisable and appropriate to do so. In the circumstances, it is appropriate to reconsider the Union’s Request in light of the Responses filed by the parties.

35In essence, the applicant objects to the Union’s Request on the following basis:

a. the Union failed to assist him in pursuing his rights asserted in this Application through the grievance process;

b. the Union entered into an agreement with the respondent regarding the applicant’s overtime pay without the applicant’s knowledge or consent;

c. the Union did not seek to intervene until the late stages of the proceedings. The applicant alleges that the Union’s purpose in intervening is to defend decisions it made unilaterally;

d. no specific provision of the collective agreement is impugned and the applicant is not seeking remedies (such as accommodation measures) that would engage the collective agreement; and

e. the intervention would unduly delay and complicate the proceeding.

36The applicant argues that, in order to be granted intervention status, the Union must establish that it has a unique perspective to bring to the litigation and that it is not sufficient for the Union to show that it has a different perspective. The applicant states that the Union will not raise any legal or factual issues that cannot be raised by the respondent. He also argues that the Union’s involvement would not be helpful to the Tribunal’s understanding of the issues, nor would it assist in the fair, just and expeditious handling of the Application.

37I am satisfied that the Union has a significant interest in this Application and that it is likely to provide assistance to the Tribunal regarding issues relating to compensation for overtime work or opportunity, and accommodation of the applicant and potential future measures of accommodation, in the event a discriminatory practice is established. I am also satisfied that the Union’s intervention will not unduly delay the hearing. The Union has indicated in its Request that it will rely on the documents already identified by the parties and it will attend on the hearing dates already fixed.

38In my view, the circumstances do not warrant deviating from the Tribunal’s general practice of allowing Union intervention in such circumstances. The applicant is a member of the Union’s bargaining unit and he is alleging discrimination in employment. At a minimum, the nature of the Application is such that it will engage provisions of the collective agreement relating to overtime work. Moreover, the remedies sought by the applicant, at least in regards to overtime and any accommodation measures, may well impact other members of the bargaining unit.

39The applicant argues that the Union’s Request ought to have been filed earlier in the proceedings. If the applicant believes that he is prejudiced by the timing of the Request, he may file a Request for an Order During Proceedings setting out the prejudice and requesting an adjournment. In the circumstances, the timing of the Union’s Request is not a basis for denying the Request.

40Accordingly, the Union’s Request to intervene is granted.

41The Union seeks to intervene broadly in the Application. The scope of the Union’s intervention, including whether it will be permitted to call or cross-examine witnesses, will be determined in advance of the hearing. Accordingly,

a. Within three days of the date of this Interim Decision, the Union will file with the Tribunal and provide to the applicant and the other intervenor a list of its proposed witnesses, a brief summary of their expected evidence, and a brief explanation of why each witness will be of assistance to the Tribunal and whether his or her evidence could be obtained through the testimony of one of the parties’ proposed witnesses.

b. Within five days of the date of this Interim Decision, the parties and the CCLA may file written submissions concerning the Union’s proposed evidence.

The Canadian Civil Liberties Association

42On May 16, 2011, the Canadian Civil Liberties Association (“CCLA”) filed a Request to Intervene regarding the following issues:

a. Whether application of the ITAR in the workplace constitutes discrimination pursuant to section 5 of the Code; and

b. Whether federal laws or agreements prescribing application of the ITAR in the workplace are superceded by Canada’s binding legal commitments to human rights, pursuant to the Canadian Charter of Rights and Freedoms, the Charter of the United Nations, and other relevant international laws.

43The CCLA seeks to make oral and written submissions. It does not seek to call evidence, nor does it state that it wishes to cross-examine witnesses. The CCLA states that its proposed submissions will be distinct from those of the parties and that it will present the perspective of a public interest organization committed to the protection of human rights, which may go beyond the ambit of the private rights of the parties. While the CCLA intends to support the Applicant’s argument that he has a right to be free from discrimination by an employer because of citizenship and place of origin, it states that it does not intend to take a position regarding the particular facts of this case.

44The applicant has filed a Response consenting to the CCLA’s Request. The Union has indicated that it does not oppose the CCLA’s Request.

45The respondent opposes the CCLA’s Request. It argues:

a. The CCLA does not meet the criteria established by the Tribunal in exercising its discretion to grant intervenor status;

b. The CCLA’s intervention would expand the scope, complexity and costs of the proceeding by raising constitutional and international law issues not raised by the applicant; and

c. The ITAR issue is moot given changes made to the regulatory scheme in the United States that take effect on August 15, 2011.

46In my view, it is appropriate to exercise my discretion and allow the CCLA to intervene in these proceedings regarding the first of the two issues it has identified, namely whether application of the ITAR in the workplace constitutes discrimination pursuant to section 5 of the Code. I am satisfied that, on this issue, the CCLA would provide assistance to the Tribunal that would otherwise not be available. I accept that the CCLA has a significant interest in this issue. Further, given that the CCLA seeks only to provide oral and written submissions, I do not believe that the CCLA’s intervention would unduly delay or prejudice the determination of the rights of the parties to the proceeding.

47At this stage of the proceeding, it is not clear to me that the CCLA’s intervention on the second of the two issues would be of assistance to the Tribunal. First, in its Request to Strike the Notice, the respondent raises issues regarding the scope of the Application and argues that the issues raised in the Notice go beyond those raised in the Application. Although I have declined to strike the Notice, at this stage of the proceedings, it is not clear to me that the second issue on which the CCLA seeks to intervene is within the scope of the matter before me. While I have found that the applicant’s delivery of the Notice is appropriate in the circumstances, it is not clear to me that the second issue identified by the CCLA (whether federal laws or agreements prescribing application of the ITAR in the workplace are superceded by Canada’s binding legal commitments to human rights, pursuant to the Canadian Charter of Rights and Freedoms, the Charter of the United Nations, and other relevant international law) is clearly before the Tribunal.

48Accordingly, the CCLA is granted leave to make written and oral submissions with respect to whether application of the ITAR in the workplace constitutes discrimination pursuant to section 5 of the Code. At this stage of the proceedings, I am not able to determine whether the CCLA’s proposed intervention on the second issue is appropriate.

49The Tribunal may provide further direction or accept further submissions from the parties and the intervenors on these issues at a later stage of the proceedings.

REQUEST FOR PRODUCTION

50On May 25, 2011, the applicant filed a Request for an Order seeking production of contracts referred to in the Response and the “sorted payroll register” for Department 197 and 170 for 2007. In the circumstances, it is appropriate to abridge the timeframe for responding to the Request.

51Within three days of this Interim Decision, the respondent shall file with the Tribunal and provide to the applicant and the intervenors its Response to the applicant’s Request for production.

52Within three days of this Interim Decision, should the intervenors wish to take a position regarding the Request, they will provide written submissions to each other, the parties, and the Tribunal.

PROPOSED EVIDENCE OF MICHAEL LERNER

53On May 25, 2011, the applicant filed a supplementary witness list and provided a copy to the respondent. The applicant indicates that he has served a summons on Michael Lerner, whose expected evidence will “deal with the release” executed by the parties on October 19, 2007.

54On May 27, 2011, the respondent advised the applicant, the Tribunal, and the Union that it objected to the proposed evidence of Mr. Lerner. It states that the terms of the minutes of settlement are unambiguous and that the evidence of Mr. Lerner is inadmissible in the circumstances.

55I note that Michael Lerner is a part-time member of the Ontario Human Rights Tribunal.

56Based on the materials before me, I cannot determine what role Mr. Lerner may have played in the matter or whether his proposed evidence is relevant to the proceeding. Accordingly,

a. within three days of the date of this Interim Decision, the applicant is directed to file with the Tribunal and provide to the applicant and interveners a more detailed statement summarizing the expected evidence of Mr. Lerner. If the applicant wishes to raise any concerns regarding a reasonable apprehension of bias in light of Mr. Lerner’s position with the Tribunal, the applicant is directed to do so in these submissions;

b. within four days of the date of this Interim Decision, the respondent and the intervenors may file written submission regarding their position on the proposed evidence of Mr. Lerner. If the respondent or the intervenors wish to raise or respond to any concerns regarding a reasonable apprehension of bias, they are directed to do so in these submissions.

ORDER

57The Tribunal concludes as follows:

a. The respondent’s request to strike the Notice of Constitutional Question and for an order enforcing the minutes of settlement with respect to the Notice of Constitutional Question is denied.

b. The Union’s request to intervene is allowed. The scope of the intervention will be determined prior to the hearing, once the Union has provided summaries of the expected evidence of its intended witnesses; and

c. The Canadian Civil Liberties Association’s request to intervene is allowed in part. The Canadian Civil Liberties Association may provide written and oral submissions with respect to whether application of the ITAR in the workplace constitutes discrimination pursuant to section 5 of the Code.

NEXT STEPS

58The parties are directed to provide further written submissions as follows:

A. Union’s intervention

59Within three days of the date of this Interim Decision, the Union will file with the Tribunal and provide to the applicant and the other intervenor a list of its proposed witnesses and a brief summary of their expected evidence.

60Within five days of the date of this Interim Decision, the parties and the CCLA may file written submissions concerning the Union’s proposed evidence.

B. Request for production

61Within three days of this Interim Decision, the respondent shall file with the Tribunal and provide to the applicant and the intervenors its Response to the applicant’s Request for production.

62Within three days of this Interim Decision, should the intervenors wish to take a position regarding the Request, they will provide written submissions to each other, the parties, and the Tribunal.

C. Proposed evidence of Michael Lerner

63Within three days of the date of this Interim Decision, the applicant is directed to file with the Tribunal and provide to the applicant and intervenors a more detailed statement summarizing the expected evidence of Mr. Lerner and raising any concerns he may have regarding a reasonable apprehension of bias.

64Within four days of the date of this Interim Decision, the respondent and the intervenors may file written submissions regarding their position on the proposed evidence of Mr. Lerner and addressing any concerns regarding a reasonable apprehension of bias.

65I am not seized of this matter,