HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Victor Pak

Applicant

-and-

City of Toronto and John Janson

Respondents

-and-

Toronto Civic Employees Union, Local 416

Intervenor

A N D B E T W E E N:

Richard Vella

Applicant

-and-

City of Toronto, Stewart Morris and John Janson

Respondents

-and-

Toronto Civic Employees Union, Local 416

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: December 20, 2011

Citation: 2011 HRTO 2281

Indexed as: Pak v. Toronto (City)

INTRODUCTION

1The applicants are paramedics with the City of Toronto (“respondent employer”) Emergency Medical Services. The applicants allege that they have been subjected to discrimination and reprisal in employment, in particular in relation to their employer’s uniform policies and practices and their efforts to seek uniform accommodation.

PROCEDURAL BACKGROUND

Pak Applications

2The applicant Victor Pak (“Pak”) filed Application 2010-07445-I on November 23, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) (“First Pak Application”), alleging discrimination with respect to employment on the basis of disability. Pak filed a second Application (2011-09306-I) on July 5, 2011, alleging discrimination with respect to employment on the basis of race, ancestry, place of origin, ethnic origin, disability, family status and reprisal (“Second Pak Application”). In this Interim Decision the First Pak Application and the Second Pak Application are collectively referred to as the “Pak Applications”.

3The respondents filed a Response on December 20, 2010, to the First Pak Application and a Response to the Second Pak Application on August 22, 2011.

4On January 4, 2011, the Toronto Civic Employees Union, Local 416 (“Union”) filed a Request to Intervene in the First Pak Application, and on August 22, 2011, the Union requested that it be granted intervenor status in the Second Pak Application.

5On January 25, 2011, the respondents filed a Request for Order During Proceedings seeking that the events with respect to 2008 be struck from the First Pak Application as either moot or out of time. The applicant submits that the 2008 events are highly relevant to the background information and are part of a series of continuing events culminating in the respondents’ withdrawal of accommodation in 2010.

Vella’s Application

6The applicant Richard Vella (“Vella”) filed Application 2011-08135-I on February 16, 2011, under section 34 of the Code, alleging discrimination with respect to employment on the basis of disability and reprisal (the “Vella Application”).

7On June 8, 2011, the Union filed a Request to Intervene in the Vella Application.

8The respondents filed a Response to the Vella Application on June 10, 2011. The respondents raise issues with respect to the timeliness of certain allegations and submit that the events with respect to 2008 should be struck from the Vella Application as either moot or out of time. The applicant submits that the 2008 allegations are part of a series of continuing events with respect to the issue of accommodation and, therefore, are timely.

9On August 26, 2011, Vella filed numerous requests, including a request to amend the Vella Application. The respondents filed a response to these requests on September 30, 2011.

Previous Orders and Directions

10By way of Orders made in earlier Interim Decisions (2011 HRTO 1356 and 2011 HRTO 1357), the Tribunal granted the Union intervenor status in the First Pak Application (2010-07445-I) and the Vella Application (2011-08135-I) and removed certain identified personal respondents as parties from these Applications.

11On August 26, 2011, the Tribunal issued two Case Assessment Directions (“CADs”) regarding both the First Pak Application and the Vella Application. The Tribunal directed that the preliminary issues raised by the parties would be considered at a later stage following the closing of the pleadings in the Second Pak Application (2011-09306-I) and pending the completion of a mediation to be scheduled in the Vella Application.

12Also on August 26, 2011, the Tribunal received the two Requests for Order During Proceedings (“RFOP”); one from Vella and one from the respondents. In his RFOP, Vella sought to amend his Application to add personal respondents, additional allegations, cite reprisal and augment the remedies requested. In their RFOP, the respondents requested that the Tribunal consolidate and defer all Applications, remove personal respondents and strike allegations because of alleged delay.

ANALYSIS

13As a result of the issuance of the August 26, 2011 CADs on the same day as the receipt of the parties’ RFOPs, it is necessary for the Tribunal to revisit the directions issued in the August 26, 2011 CADs and address some of the matters and requests raised by the parties and the Union. Pleadings have closed in the Second Pak Application and no mediation has been scheduled for the Vella Application because of the multitude of requests and filings. In particular, the Tribunal will now consider the Union’s request to intervene in the Second Pak Application and the issue of consolidation.

Intervention in the Second Pak Application

14As noted above, the applicants’ Union seeks to intervene in the Second Pak Application (2011-09306-I). The Union represents the applicant in the workplace as the applicant’s exclusive bargaining agent and has been granted intervenor status in the the first Pak Application and the Vella Application.

15The Tribunal in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, stated:

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.

16Given the Union’s status as an intervenor in the other related Applications, and in accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by a union, the Union’s request to intervene in the Second Pak Application (2011-09306-I) is granted.

17The extent and the nature of the Union’s participation in the proceeding will be determined by the adjudicator hearing the matter.

Consolidation of Applications

18In the earlier Interim Decisions, the Tribunal directed the parties to file submissions with respect to consolidation. In the August 26, 2011 CADs, the Tribunal directed that the issue of consolidation would be considered at later stage following the closing of pleadings in the Second Pak Application (2011-09306-I) and the mediation of the Vella Application. However, as a result of the voluminous materials and the cross-over of the Tribunal’s CADs with the parties’ multiple RFOPs, the Tribunal considers it appropriate to reconsider the August 26, 2011 CAD direction postponing consideration of consolidation.

19The parties have filed detailed submissions with respect to the issue of consolidation. Although it takes no position on consolidation, the Union notes that the underlying issues in the Applications are the same.

20The respondents confirm that they support consolidation on the basis that the Applications involve common facts, evidence and questions of law. The respondents highlight that the First Pak Application and the Vella Application are based on the same events, make the same allegations and that there is a history of joint interactions between the applicants and the respondent employer’s representatives.

21The applicants support limited consolidation and submit that only the portions of the First Pak Application and the Vella Application that relate to the accommodation of their uniform needs should be consolidated. The applicants object to consolidating the issues set out in the remainder of the Applications, such as reprisal, because they perceive these matters to be separate. The applicants submit that, while there are similarities between their pleadings, they should not be forced to “harmonize” their positions.

22Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together. In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

23Having carefully reviewed the parties’ submissions and having regard to all of the factors set out in Persuad, as well as considering the Tribunal’s mandate to resolve matters in a fair, just, and expeditious manner, I find that Tribunal files 2010-07445-I, 2011-08135-I and 2011-09306-I should be consolidated and heard together.

24The First Pak Application and the Vella Application are parallel, in that both applicants alleged that they are work partners who have been subjected to disability discrimination and denied appropriate accommodation with respect to the respondent employer’s uniform policy. The Second Pak Application makes allegations of discrimination, harassment and reprisal as a result of the events in the First Pak Application and discusses events that he experienced along with Vella, his work partner. Vella’s request to amend his Application also seeks to add further allegations of discrimination, harassment and reprisal as a result of the alleged events in his Application and also discusses Pak and their shared experiences. As such, the Pak Applications relate to events and allegations which form the basis of the Vella Application and Vella’s request to amend.

25There is significant overlap in the facts and issues in these three Applications, as well as duplication of the respondent parties, potential witnesses and documentary evidence. The Applications and applicants’ various submissions cross-reference each other’s materials. Both applicants indicate that they are key witnesses in each other’s cases and many of the assertions in the Applications and Responses apply to both matters because the applicants jointly experienced the alleged events. In addition to the common events, the Applications advocate mutual concerns, raise the same legal issues and seek similar remedies. As noted in Interim Decisions 2011 HRTO 1876 and 2011 HRTO 1831, dealing with the applicants’ request for interim remedy, there was little meaningful difference between the circumstances raised by both applicants.

26In my view, the Applications should be consolidated and heard together. The circumstances of these Applications present a compelling public interest to avoid multiplicity of proceedings, as well as considerations of expense, convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of divergent results. Consolidation avoids the possibility of inconsistent findings of fact and credibility. Furthermore, there was no basis to find that consolidating the Applications together would result in any significant prejudice to a party. Accordingly, the Tribunal determines that it is appropriate to consolidate the three Applications.

Request to Defer

27The respondents have requested that the Applications be deferred because there are outstanding grievances and an Occupational Health and Safety Act (“OHSA”) appeal that arises out of an OHSA application jointly filed by the applicants. The respondents request that the Tribunal defer consideration of the Applications pending the conclusion of the grievances and the OHSA proceeding.

28The Union has not filed submissions with respect to the issue of deferral.

29The applicants oppose deferral on the basis that the grievances focus on discrete matters, one of which is simply an issue of monetary compensation, and the absence of their participation in the OHSA appeal.

30With respect to the OHSA proceeding, the applicants indicate that, while they were party to the original OHSA application, they are not involved in the respondent employer’s appeal and that matter is progressing without their knowledge.

31With respect to the outstanding grievances, Pak acknowledges in his Second Application that there two ongoing grievances regarding payroll discrepancies and alleged misconduct, issues which are also raised in the second Application.

32On October 23, 2011, Vella filed with the Tribunal detailed submissions regarding various issues, including deferral, and appended a copy of Minutes of Settlement from a Step 2 grievance meeting in order to support his submissions that it is not appropriate to defer his Application. Vella’s submissions indicate that there are two grievances, one which is “surrounding the facts and issues with regards to the Human Rights Code” and the second with respect to payroll. Vella notes that with respect to the first matter he provided “an extensively comprehensive grievance”, which has been truncated into a single sentence claiming unfair reprimand. Vella further submits that in accordance with the Minutes of Settlement agreed upon by the parties on October 18, 2011, the first grievance will be held in abeyance pending the outcome of the Tribunal process.

33On December 16, 2011, the respondents wrote to the Tribunal expressing concern regarding the Minutes of Settlement provided by Vella. The respondents submit that Minutes of Settlement were entered into by respondent representatives who were unfamiliar with the respondents’ positions in the Tribunal process and unaware of the request to defer. The respondents submit that the Minutes of Settlement are void because of the applicants’ failure to disclose a material fact. The respondent submits that based on discussions with the Union the grievances will be proceeding to Step 3 of the grievance process.

34In these circumstances, the Tribunal requires clarification and information about the various grievances, the parties, nature/substance and status of the grievances, as well as any settlement, and whether the grievance is settled or being pursued. All parties, including the Union, are required to provide the Tribunal with information and supporting documentation with respect to applicants’ grievances and to respond to the respondents’ December 16, 2011 correspondence. The Tribunal also seeks up to date information about the parties, nature and status of the of OHSA appeal.

ORDER

35The Tribunal makes the following Orders:

I. The Union is granted intervenor status in the Second Pak Application (2011-09306-I);

II. The direction contained in the August 26, 2011 CAD postponing consideration of the issue of consolidation is superseded by this Interim Decision. All three Applications (2010-07445-I; 2011-08135-I and 2011-09306-I) are consolidated;

III. The parties and the Union are required to provide written submissions with respect to the issue of deferral pending the conclusion of the grievance proceedings and the OHSA appeal. The submissions and supporting documentation must provide information with respect to the parties, nature and status/settlement of the grievances, as well as respond to the respondents’ December 16, 2011 correspondence, and provide up to date information bout the parties, nature and status of the of OHSA appeal; and

IV. The applicant and Union are required to file with the Tribunal and copy to each party their written submissions within 21 days of the date of this Interim Decision. The respondents are required to file with the Tribunal and copy to each party their written submissions within 21 days of receipt of the applicants’ and Union’s submissions.

36I am not seized.