Eli Yunger v. City of Toronto, 2011 HRTO 2254

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eli Yunger

Applicant

-and-

City of Toronto

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: December 15, 2011

Citation: 2011 HRTO 2254

Indexed as: Yunger v. Toronto (City)

1The purpose of this Interim Decision is to address a request by the Canadian Union of Public Employees, Local 79 (“CUPE”) to intervene and the respondent’s request to defer this Application pending the outcome of a proceeding now before the Ontario Superior Court of Justice - Divisional Court.

2The applicant filed this Application alleging discrimination in employment on the basis of age contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). His Application concerns the policy of the City of Toronto to extend medical benefits after the age of 65 to some, but not all, retirees on the basis of whether they were 50 years of age or older on May 11, 2000.

REQUEST TO INTERVENE

3The Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, that:

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.

4I am satisfied that CUPE has the requisite interest in this Application. Accordingly, CUPE is granted leave to intervene. Should the Application proceed to hearing, the scope of CUPE’s intervention will be determined by the adjudicator hearing the matter.

DEFERRAL

5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve allegations of discrimination brought before it.

6In its Response, the respondent requested that the Tribunal defer this Application pending the outcome of a judicial review proceeding before the Ontario Superior Court of Justice - Divisional Court involving the respondent, but not the applicant. This judicial review is of a decision of Arbitrator Randall in a policy grievance involving the same subject matter as this Application. In that case, Arbitrator Randall refused to take jurisdiction in light of an earlier arbitration decision, which the Divisional Court had previously upheld.

7When the Tribunal delivered the Response to the applicant, it specifically referred to the respondent’s deferral request and asked the applicant to provide submissions in response to the request. The applicant and CUPE, his union, both support deferral.

8In the instant case, the very policy the applicant is challenging is now before the Divisional Court. It is scheduled to be heard on February 12, 2012. In light of this, and the unanimous support of the parties and intervenor, the Tribunal is of the view that deferral to the judicial review process is appropriate. The Application will be deferred pending the completion of that process.

9The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which a party may seek to bring the Application back on after the conclusion of the proceeding before the Divisional Court.

10I am not seized of this matter.