Richard Vella v. City of Toronto, Stewart Morris and John Jansen, 2011 HRTO 1357

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Vella

Applicant

-and-

City of Toronto, Stewart Morris and John Jansen

Respondents

-and-

Toronto Civic Employees Union, Local 416

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: July 18, 2011

Citation: 2011 HRTO 1357

Indexed as: Vella v. Toronto (City)

1The applicant filed an Application on February 16, 2011, 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 and reprisal.

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

3On June 8, 2011, the Union filed a Request to Intervene. In its Request to Intervene, the Union indicates that it is currently engaged in discussions with the respondent employer with respect to the uniform issues which are central to the Application.

4The applicant filed a response to the Union's request to intervene and submits that the Union should only be granted limited standing and, specifically, the Union should not be allowed to address issues with respect to the alleged reprisal in relation to the applicant's secondary employment.

5The respondents filed a Response on June 10, 2011. The respondents raise issues with respect to the timeliness of certain allegations and submit that the events with respect to 2008 should be struck from the Application as either moot or out of time. The respondents did not take a position with respect to the Union's request to intervene

6The applicant filed a Reply on June 27, 2011. The applicant submits that the 2008 allegations are part of a series of continuing events with respect to the issue of accommodation and, therefore, are timely.

REQUEST TO INTERVENE

7The 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.

8As 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.

9Based 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 background facts to 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.

10The extent and the nature of the Union's participation in the proceeding will be determined by the adjudicator hearing the matter.

CONSOLIDATION

11The Application and Response indicate that the applicant and his co-worker partner have filed similar Applications raising related concerns regarding the respondent employer's uniform policy. The applicant's co-worker partner has filed Application 2010-07445-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 the Applications and Responses apply to both matters.

12Rule 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.

13Given 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

14The Tribunal will determine the issues set out above, including mootness/timeliness and consolidation, based on the parties' submissions and the materials already before it and/or may issue further directions.

15The 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.

16I am not seized of this matter.