HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Antonio Lio
Applicant
-and-
City of Toronto
Respondent
-and-
Canadian Union of Public Employees, Local 79
Intervenor
INTERIM DECISION
Adjudicator: Naomi Overend
Date: December 19, 2011
Citation: 2011 HRTO 2267
Indexed as: Lio 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, as well as the Notice of Intent to Defer issued by the Tribunal on September 26, 2011.
2The applicant filed this Application alleging discrimination in employment on the basis of disability contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). His Application concerns the decision of the City of Toronto to apply the Attendance Management Program to him.
REQUEST TO INTERVENE
7The Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 that:
3A 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.
8I am satisfied that CUPE has the requisite interest in this Application. Moreover, none of the parties expressed opposition to CUPE’s involvement. 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
4The 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.
5In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.
6The applicant advised in his Application that he had also filed a grievance, in which he sought to be removed from the Attendance Management Program. This prompted the Tribunal to issue its Notice of Intent to Defer, prior to seeking a Response from the respondent.
7The respondent wrote brief submissions in support of deferral in response to the Notice. It notes that the applicant has, in fact, filed four grievances, although it is not clear the level of overlap between the subject matter of three of the four grievances and the Application. In its Request to Intervene, CUPE advises that a grievance had been filed in which the applicant had requested relief from the Attendance Management Program (C11-08-0317), but not indicate what position it takes on the issue of deferral. The applicant filed nothing in response to the Notice of Intent to Defer.
8In the instant case, the failure of the applicant and CUPE to oppose deferral and the obvious overlap in the subject matter of the grievance on the Attendance Management Program (C11-08-0317) and the Application are factors which favour deferral to the grievance process. Accordingly, the Application will be deferred pending the completion of that process on grievance C11-08-0317.
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 grievance process.
10I am not seized of this matter.
Dated at Toronto, this 19th day of December, 2011.
”signed by”______________
Naomi Overend
Vice-chair