Wang v. Delta Chelsea Ltd., 2011 HRTO 1161

Human Rights Tribunal of Ontario

Between:

Li Wang Applicant

-and-

Delta Chelsea Ltd. o/a Delta Chelsea Hotel Respondent

-and-

Union of Needletrades, Industrial and Textile Employees Hotel Employees and Restaurant Employees International Union, Local 75 Intervenor

Interim Decision

Adjudicator: Ena Chadha Date: June 20, 2011 Citation: 2011 HRTO 1161 Indexed as: Wang v. Delta Chelsea Ltd.

1The applicant filed this Application on March 4, 2011 under Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application alleges discrimination with respect to employment on the basis disability. The applicant alleges that the respondent failed to accommodate her injuries and terminated her employment because of her disability.

2The respondent filed a Response on May 18, 2011, and requests early dismissal of the Application on the basis that another proceeding, namely the Workplace Safety and Insurance Board ("WSIB"), appropriately dealt with the substance of the Application. In the alternative, the respondent argues that the Application should be deferred until the conclusion of the applicant's grievance arbitration. The respondent also argues that WSIB has exclusive jurisdiction over the Application.

3On February 11, 2011, the Tribunal issued a Notice of Intent to dismiss and defer to the applicant and directed the applicant to file submissions in response to the respondent's requests to dismiss and defer.

4On April 26, 2011, the applicant's union, Union of Needletrades, Industrial and Textile Employees Hotel Employees and Restaurant Employees International Union, Local 75 ("Union"), filed a Request to Intervene. The Union seeks to intervene in this Application because the Union is the exclusive bargaining agent of employees working at the applicant's workplace and the applicant is a member of the Union. The Union indicates that it has relevant information about the facts as alleged in the Application. The Union indicates that, in particular, it is concerned that its interests may be affected by any remedy ordered in this matter.

5On June 10, 2011, the applicant filed submissions objecting to the respondent's Request to dismiss and consenting to the Request to defer.

6Neither applicant nor respondent filed submissions in response to the Union's Request to Intervene.

Request to Intervene

7As the Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant's bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

8Based on the material submitted by the Union, I am satisfied that the Union has an interest in the outcome of the Application and relevant information regarding the facts alleged in the Application. As such, in accordance with the Tribunal's standard practice where an applicant is a member of a bargaining unit represented by a union, the Union's Request to intervene is granted. The scope of the Union's participation in the hearing will be determined by the adjudicator hearing the Application.

Section 45.1

9Section 45.1 of the Code provides as follows:

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. [emphasis added]

10The applicant alleges that the respondent infringed her Code-protected rights by failing to accommodate her disability to the point of undue hardship. In particular, the Application alleges that the respondent treated the applicant unfairly, refused to consider modifying her job and the type and location of her work and dismissed her without proper consideration of accommodation options.

11In Boyce v. Toronto Community Housing Corporation 2010 HRTO 520, the Tribunal considered the relationship between the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A, as amended ("WSIA"), and the Code in cases where a worker returns to work following a work-related injury. At paragraph 8, the Tribunal stated that:

...the Code applies to a return to