Victor Pak v. City of Toronto and John Janson, 2011 HRTO 1356

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Victor Pak

Applicant

-and-

City of Toronto and John Janson

Respondents

-and-

Toronto Civic Employees Union, Local 416

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: July 18, 2011

Citation: 2011 HRTO 1356

Indexed as: Pak v. Toronto (City)

1The applicant filed an Application on November 23, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability. The Application originally named three personal respondents.

2The Application was served on the respondents and the applicant’s union, Toronto Civic Employees Union, Local 416 (“Union”), as a named affected party.

3The respondents filed a Response on December 20, 2010. On January 4, 2011, the respondents filed a Request for Order During Proceedings asking that the three personal respondents be removed as parties from Application.

4On January 4, 2011, the Union filed a Request to Intervene. In its Request to Intervene, the Union indicates that it is familiar with the respondent employer’s policies and procedures and seeks full standing at the hearing before the Tribunal.

5On January 17, 2011, the applicant filed a response to the respondents’ request to remove the personal respondents and indicated that he consented to remove two of the three personal respondents. The applicant indicated that he did not agree to remove John Janson, the third personal respondent, because the applicant believes that respondent Janson was responsible for certain discriminatory decisions and directives in violation of the respondent employer’s policies in contravention of the applicant’s human rights.

6On January 21, 2011, the respondents filed a response indicating that they do not oppose the Union’s request to intervene.

7The applicant filed a Reply on January 24, 2011, and submitted that the allegations are timely because the last discriminatory event alleged in the Application was August 13, 2010.

8On January 25, 2011, the applicant filed a response opposing the Union’s request to intervene. The applicant submits that the Union’s request should be denied because the Collective Agreement does not address the uniform issues raised in the Application. The applicant submits, in the alternative, that the Union should only be granted limited standing and, specifically, the Union should only be allowed to participate for the purpose of enforcing the Collective Agreement.

9On January 25, 2011, the respondents filed a Request for Order During Proceedings stating that the events with respect to 2008 should be struck from the Application as either moot or out of time.

10On February 10, 2011, the applicant filed a response to the respondents’ request to dismiss or strike parts of the Applications with respect to events that occurred in 2008. The applicant submits that the 2008 allegations are part of a series of continuing events culminating in the respondents’ withdrawal of accommodation. The applicant submits that the 2008 events are highly relevant to the background information to the discrimination that took place in 2010.

11On April 4, 2011, the applicant filed a Request for Order During Proceedings confirming that he seeks to withdraw the Application as against two of the originally named personal respondents. On June 10, 2011, the respondents wrote to the Tribunal confirming that they maintain their request that the respondent Janson be removed as a personal respondent from the Application.

REQUEST TO INTERVENE

12The applicant’s Union seeks to intervene in accordance with Rule 11 of the Tribunal’s Rules of Procedure. The Union represents the applicant in the workplace as the applicant’s exclusive bargaining agent.

13As 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.

14In 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.

15The extent and the nature of the Union’s participation in the proceeding will be determined by the adjudicator hearing the matter.

CONSOLIDATION

16The Application and Response indicate that the applicant and his co-worker partner have raised similar human rights concerns regarding the respondent employer’s uniform policy. The applicant’s co-worker partner has also subsequently filed an Application (2011-08135-I). Both the applicant and his co-worker partner indicate that they are witnesses in each other’s cases. Many of the assertions made by the parties in their Applications and Responses apply to both matters.

17Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear Applications together. In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

18Given the common parties, facts and issues, and overlapping interests present in these Applications, the Tribunal directs the parties to provide their position on consolidation of the Applications to the Tribunal, with a copy to the other parties, within seven days from the date of this Interim Decision. If a party does not consent to consolidation, then it should provide written submissions in support of its position to the Tribunal and the other parties.

CONCLUSION

19The Tribunal will determine the issues set out above, specifically the request to remove respondent Janson, the issues of mootness/timeliness and consolidation, based on the parties’ submissions and the materials already before it and/or may issue further directions.

20The Tribunal orders as follows:

• The Union is granted intervenor status and the style of cause is amended to reflect the same.

• Within seven days of the date of this Interim Decision, the parties are required to write to the Tribunal, copied to each other, setting out their position and/or submissions with respect to consolidation.

21I am not seized of this matter.