HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Donald Still
Applicant
-and-
El-Met Parts Inc.
Respondent
-and-
National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW – Canada)
Intervenor
INTERIM DECISION
Adjudicator: Alan G. Smith
Indexed as: Still v. El-Met Parts
WRITTEN SUBMISSIONS
Donald Still, Applicant ) Andrew C. Bome, Counsel
El-Met Parts Inc., Respondent ) Naomi E. Calla, Counsel
National Automobile, Aerospace, ) Transportation and General Workers ) Union of Canada (CAW – Canada), ) Intervenor ) Thomas Rooke, Representative
BACKGROUND
1The applicant filed this Application on February 15, 2011, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and harassment in his workplace on the ground of sexual orientation.
2In its Response filed June 24, 2011, the respondent requested that the Application be dismissed on the basis that:
since the last incident of harassment/discrimination alleged by the applicant occurred in January of 2009, the Application is untimely and hence not within the jurisdiction (power to decide) of the Tribunal; and
pursuant to s. 45.1 of the Code, in that both a workplace grievance filed through CAW and a claim made to the Ontario Workplace Safety and Insurance Board (“WSIB”) have appropriately dealt with the subject matter of the Application.
3On May 19, 2011, the applicant’s bargaining agent, National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW – Canada), (“CAW”) filed a Request to Intervene in the Application. In the Request the CAW noted:
The Union does not intend to actively participate in this proceeding, as the Applicant has not requested its assistance. However, should allegations about the quality of the Union’s representation become an issue, the Union reserves the right to make substantive submissions on that issue.
4On August 5, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) directing the applicant to provide written submissions with regard to the issue as to whether the Application should be dismissed as untimely.
5On August 22, 2011, the applicant provided written submissions in response to the CAD. In essence, the applicant argues that the Application is timely given that the last of a series of harassing incidents occurred in May of 2010 when the word “rat” was written on his workplace time card (the “time card incident”). The applicant alleges a series of incidents that extend back to the beginning of his employment with the respondent in 1997.
REQUEST TO INTERVENE
6The Tribunal’s Rule 11.1 provides that:
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.
7As stated by the Tribunal in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 at para. 13:
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.
8In the present case the applicant is still an active employee represented by a bargaining agent. Pursuant to Boyce, above, the Tribunal’s established practice where an applicant is a member of a bargaining unit is to grant intervenor status when requested by the union, absent exceptional circumstances. See recent examples: D.R. v. Upper Grand District School Board, 2011 HRTO 1187, Oxley v. Vaughan (City), 2011 HRTO 1295, Yonis v. Newalto Corporation, 2011 HRTO 1352, Pak v. Toronto (City), 2011 HRTO 1356; and Woito v. Marianhill, 2011 HRTO 1437.
9It appears that CAW has a significant interest in the allegations and that its members may be impacted by the potential factual findings. The union may be able to offer a unique perspective on the facts and be in a position to provide specific information about the facts and issues different from that which will likely be put forward by the parties. As such, CAW’s participation may assist the Tribunal in achieving a more fulsome understanding of the factual and legal issues.
10In sum I find that it would be fair, just and expeditious to permit CAW to intervene in this Application.
NEXT STEPS RE PRELIMINARY ISSUES
11In its Response, the respondent has sought dismissal of the Application on the basis of the Application being untimely and on the basis of s.45.1 of the Code. The Tribunal directs that a half-day hearing by conference call be convened to hear submissions, if any, from the parties and intervenor on the issues of timeliness and whether the Application should be dismissed in whole or in part on the basis of s.45.1, as well as the issue of whether the Tribunal has the jurisdiction (power to decide) the time card allegation. To assist the parties in preparing for this hearing, I have set out below in further detail the issues and legal principles to be dealt with at the conference call hearing.
Timeliness
12The applicant’s written submissions in response to the CAD allege, “[t]he conduct that Mr. Still complained about has continued”. However, the applicant provides no specific example of any incidents of harassment or discrimination occurring between January 2009 and the “time card incident” alleged to have occurred in May of 2010: a gap of some sixteen months.
13Generally, events are not part of a “series of incidents” pursuant to Code s. 34(1)(b) if there is a significant gap in time between them. The Tribunal has determined that in most cases a gap of more than one year between events interrupts the series. See for example Savage v. Toronto Transit Commission, 2010 HRTO 1360; and Chintaman v. Toronto District School Board, 2009 HRTO 1225.
Code s. 45.1
14Section 45.1 of the Code reads as follows:
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.
15In its Response to the Application, the respondent submits that the Application raises issues concerning the respondent’s Workplace Violence and Discrimination Policy, which was subject to a grievance settlement in March 2009 between the respondent employer and the intervenor. As well, the respondent submits that the applicant submitted an application to the WSIB alleging that he suffered from depression as a result of workplace stress and harassment. The WSIB subsequently denied the applicant’s claim. In light of the settlement and WSIB decision, the respondent submits that the Tribunal ought to dismiss all or part of the Application on the basis that that the substance of the Application has been appropriately dealt with in other proceedings within the meaning of s.45.1 of the Code.
16The applicant opposes the Request to Dismiss on the basis that the WSIB decision and the grievance settlement do not address his personal circumstances or deal with the issues raised in his Application.
17The parties’ attention is drawn to the fact that on October 27, 2011, the Supreme Court of Canada released the decision in Workers Compensation Board of British Columbia v. Guiseppe Figliola et. al. 2011 SCC 52. The decision dealt with a provision in the British Columbia Human Rights Code similar to that of s. 45.1 of the Ontario Code. Reference should also be made to two very recent decisions of the Tribunal applying the Figliola judgement to s. 45.1: Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 and Paterno v. Salvation Army, 2011 HRTO 2298.
Time Card Incident
18It appears that the applicant alleges that he was subjected to discrimination on the basis of sexual orientation when a time card was defaced with the word “rat”; however, it is not clear from the Application how this allegation engages the Code-protecting ground of “sexual orientation”.
19The Tribunal does not have the general power to inquire into claims of unfairness or wrongdoing outside the areas or grounds prescribed in the Code. See Cooper v. Pinkofskys, 2008 HRTO 390; Fulton-Bell v. Kawartha-Haliburton Children’s Aid Society, 2009 HRTO 1769; Grant v. Tierney, 2011 HRTO 1207; and Demerling v. City of Toronto Social Housing Unit Shelter Support, HRTO 2011 1584. The Tribunal’s jurisdiction is limited to dealing with disputes that properly fall under the Code.
ORDER
20The Union is granted intervenor status and the style of cause is amended accordingly. The extent and the nature of the Union’s participation in the proceeding will be determined by the adjudicator hearing the matter.
21The Registrar will schedule a half-day hearing by conference call to hear submissions on the issues as outlined above in paragraphs 11 to 19.
22The following directions shall apply to the conference call:
(a) The applicant should be prepared to proceed first by responding to the respondent’s written argument with regard to the above issues.
(b) If either party wishes to rely on any written materials (including written submissions, documents or case law) or facts not contained in the Application, Response, Form 11, or other previous submissions, they must deliver such additional material to the other party and intervenor and file it with the Registrar no later than 14 days before the date of the conference call.
23I am not seized of this matter.
Dated at Toronto, this 28th day of December, 2011.
”signed by”__________
Alan G. Smith
Member