Bishop v. Grand Erie District School Board, 2011 HRTO 1998

Human Rights Tribunal of Ontario

B E T W E E N:

Richard Bishop

Applicant

-and-

Grand Erie District School Board

Respondent

-and-

Canadian Union of Public Employees and its Local 5100

Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend

Date: November 3, 2011

Citation: 2011 HRTO 1998

Indexed as: Bishop v. Grand Erie District School Board

1This Interim Decision deals with the Request to Intervene by the applicant’s union, the Canadian Union of Public Employees and its Local 5100 (“CUPE”), and the respondent’s request to dismiss the Application under s. 45.1 and/or as an abuse of process. The applicant filed this Application on November 25, 2010, alleging discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

REQUEST TO INTERVENE

2The applicant is a member of the CUPE, which filed a Request to Intervene (Form 5) on March 4, 2011. The applicant filed a Response to the Request (Form 11) in which he indicated that he was taking no position with respect to CUPE’s Request, but says that such intervention should be limited to addressing the issues of remedy as they relate to future compliance and special damages, but not the applicant’s entitlement to general damages.

3The Tribunal has found on numerous occasions that a union nearly always has an interest in an application brought by a member of one of its bargaining units and that, absent exceptional circumstances, will be granted intervention status when it so requests it.

4Moreover, given CUPE’s involvement with the applicant concerning the accommodation of his disability, it may be able to assist the Tribunal in determining some of the issues, including the respondent’s request to dismiss discussed below. Accordingly, CUPE is granted leave to intervene. Should the Application proceed to hearing, the scope of the CUPE’s intervention will be determined by the adjudicator hearing the matter.

REQUEST TO DISMISS

5Following receipt of the Application, the respondent filed a Request for Order During Proceedings in which it made a request for early dismissal on the basis that the substance of the Application had been, in whole or in part, appropriately dealt with in another proceeding. In the alternative, the respondent submits that the Application should be dismissed because it would be an abuse of process to allow the applicant to re-litigate an issue that has been settled.

6Specifically, the respondent submits that the applicant filed a grievance, which was withdrawn by CUPE after the parties reached an appropriate plan of accommodation.

7The applicant disagrees that his Application should be dismissed in whole or in part, saying that the parties did not resolve all outstanding issues. In addition, he submits that the withdrawal was “without prejudice or precedent,” thus allowing him to pursue the outstanding human rights issues through an application to this Tribunal.

8Section 45.1 of the Code states:

45.1 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.

9The Tribunal will deal with the respondent’s Request to Dismiss issue at a half-day in-person preliminary hearing, at which the parties are entitled to call evidence. If the parties intend to call evidence, they shall deliver to each other and the Tribunal any witness lists, witness summaries and/or documents 14 days prior to the preliminary hearing.

ORDERS

10In sum, the Tribunal makes the following orders / directions:

1. CUPE is granted leave to intervene;
2. The Tribunal will deal with the respondent’s request to dismiss this Application under s. 45.1 and/or as an abuse of process at a half-day preliminary hearing; and
3. The parties shall deliver to each other and the Tribunal any witness lists, witness summaries and documents 14 days prior to the preliminary hearing.

11I am not seized of this matter.