HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Donna Woito
Applicant
-and-
Marianhill Inc.
Respondent
-and-
Canadian Union of Public Employees, Local 2764
Intervener
INTERIM DECISION
Adjudicator: Alan G. Smith
Indexed as: Woito v. Marianhill
WRITTEN SUBMISSIONS
Donna Woito, Applicant ) Self Represented
Marianhill Inc. and Lynda Schroeder, )
Respondents ) Alanna Twohey, Counsel
Canadian Union of Public Employees, )
Local 2764, Interested Party ) Sue Lott, Counsel
BACKGROUND
1This is an Application filed on July 12, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination on the basis of disability as well as reprisal in employment.
2The respondents filed a Request for Order During Proceeding on October 27, 2010. The respondents request that the personal respondent be removed from the Application.
3On October 28, 2010, the applicant’s bargaining agent, Canadian Union of Public Employees, Local 2764, (“CUPE”) filed a Request to Intervene in the Application.
4On November 2, 2010, the respondents filed a Response objecting to CUPE’s request to intervene
5On December 10, 2010, the applicant filed a Reply consenting to the Respondent’s request for removal of the personal respondent but did not provide any submissions with regard to CUPE’s request to intervene.
REMOVAL OF PERSONAL RESPONDENT
6Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal set out the general principles that apply to this issue:
…the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.
7The respondents argue that all five parts of the Persaud test have been met and therefore the personal respondent should be removed as a party to the Application.
8The applicant consents to the removal of the personal respondent stating, “I have no objection to the removal of Lynda Schroeder as Marianhill is taking full responsibly for her actions”.
9In sum, applying all the factors set out in Persaud, and on consent of the applicant, I find that the personal respondent should be removed as a party to the Application.
REQUEST TO INTERVENE
10CUPE is seeking to intervene on the basis that it has an interest in the outcome of the litigation. The Union represents the applicant in the workplace as the applicant’s exclusive bargaining agent. CUPE asserts that it wishes to reserve its right, “to make submissions on the facts and issues raised in the Application which affects it”.
11The respondent employer cites the Tribunal’s decision in Upchurch v. MTI Mechanical Trade Industries, 2010 HRTO 1323, and argues, among other things, the Application neither criticizes CUPE nor requests any action which would, “have any bearing on the union at all”.
12The Tribunal’s Rule 11.1 provides that:
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.
13As stated by the Tribunal in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 at para. 13:
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.
14Unlike in Upchurch, above, in the present case the applicant is still an active employee represented by a bargaining agent. Pursuant to Boyce, above, the Tribunal’s established practice where an applicant is a member of a bargaining unit is to grant intervenor status when requested by the union, see the very recent examples D.R. v. Upper Grand District School Board, 2011 HRTO 1187, Oxley v. Vaughan (City), 2011 HRTO 1295, Yonis v. Newalto Corporation, 2011 HRTO 1352 and Pak v. Toronto (City), 2011 HRTO 1356.
15Having reviewed the Application, Response and Reply,. and having regard to the decisions of the Tribunal above, I am satisfied that CUPE has a sufficient interest to warrant allowing its request to intervene.
16In sum I find that it would be fair, just and expeditious to permit CUPE to intervene in this Application.
ORDER
17On consent, the personal respondent is removed from the Application. The style of cause is amended accordingly.
18The Union is granted intervenor status and the style of cause is amended accordingly. The extent and the nature of the Union’s participation in the proceeding will be determined by the adjudicator hearing the matter.
19The Tribunal will proceed to schedule this Application for a hearing.
20I am not seized.
Dated at Toronto, this 2nd day of August, 2011.
“Signed by”
Alan G. Smith
Member