HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Krystyna Ruszkowski Applicant
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Cara Airline Solutions Operations Limited Respondent
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Teamsters Local Union No. 419 Intervenor
INTERIM decision
Adjudicator: David Muir Date: September 12, 2011 Citation: 2011 HRTO 1620 Indexed as: Ruszkowski v. Cara Airline Solutions Operations
1This is an Application filed June 29, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment on the basis of disability. This Decision deals with two preliminary issues both involving the participation in this proceeding by the applicant's trade union the Teamsters Local Union No. 419 (the "union").
2The applicant has filed a Request to add the union as a party respondent on the basis that it mislead her about the status of a grievance she filed and because they did nothing for her in dealing with the issues underlying this Application. The union has filed a Request to Intervene in this Application. The Request to add the union as a party is denied, the Request to intervene is granted.
Request to add the union as a party
3The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513, that when determining a request to add a respondent, the Tribunal should consider the following three questions:
(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?
(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
(3) Would it be fair, in all the circumstances, to add the proposed respondent?
4The applicant's trade union filed a grievance dealing with the issues raised in this Application on January 30, 2010. The grievance was unresolved but was not referred to arbitration. The applicant states that the union should be added as a party because she believes that the union mislead her about the referral of her grievance to arbitration. She also believes that the union did not adequately represent her in respect of these same issues with the respondent employer.
5The facts relied on in support of this Request are that the union having indicated to her in February 2010 that her grievance would be referred to arbitration failed to promptly respond to the applicant's enquiries about its status between August 12 when she first enquired and August 19, 2010 when the union confirmed that her grievance had not been referred to arbitration. The issue was important to the applicant at that point because when she filed this Application she had indicated in the Application that the grievance had been filed and, as such, the question of a deferral pursuant to section 45 of the Code had been raised and the applicant needed to make submissions to the Tribunal on the point.
6While it may have been frustrating for the applicant to have believed for a time that her grievance would be referred to arbitration when it was not, I am not satisfied that the union's actions or inactions as articulated by the applicant raise any potential Code issues. There is no suggestion that what was done or not done by the union was informed to some degree by the fact that the applicant was a person with a disability. The Tribunal does not have a general jurisdiction to deal with claims of unfairness, nor does it have any jurisdiction to police the manner in which a trade union represents its members unless some provision of the Code is engaged.
7Having regard to the factors cited above in paragraph 3 I am not satisfied that it would be fair just and expeditious to add the union as a party to this proceeding.
Request to Intervene
8Rather than respond directly to the applicant's Request to add it as a party, the union filed a Request to Intervene. Neither the respondent nor the applicant responded to this Request.
9The Tribunal's Rule 11.1 provides:
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.
10The first issue to be determined is whether the union will be permitted to intervene. If the union is permitted to intervene, the next question is the extent of participation. In most cases, the determination of the first question will be decided, as in this case, as a preliminary issue in advance of a hearing. In my view, in most cases, it is appropriate for the Vice-chair or Member who presides over the hearing to decide the extent and nature of the participation of the intervenor. The presiding adjudicator will generally be in the best position to decide issues such as whether the intervenor may call evidence, the scope of any such evidence, and the extent and scope of any submissions that the intervenor may be permitted to make.
11The Tribunal has taken the approach that a union or association will almost always have 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 (see Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131).
12It is not disputed that the union is the bargaining agent for the applicant and her workplace colleagues. It is also not disputed that there was a grievance filed dealing with at least some of the issues in this Application. The issue at the heart of the Application relates to the scheduling of work and seniority. These are issues that are likely of general interest to the union. It is entitled to participate in the proceedings.
13The Request to Intervene is granted. The union's status at this stage is as an intervenor and not a respondent. The extent of the union's participation as an intervenor in any future proceedings will be determined by the Vice-chair or Member who presides over those proceedings.
14I am not seized.
Dated at Toronto, this 12th day of September, 2011.
"Signed by"
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David Muir Vice-chair