Human Rights Tribunal of Ontario

B E T W E E N:

Sherri Stillo Applicant

-and-

Toronto Transit Commission Respondent

-and-

Amalgamated Transit Union, Local 113 Intervenor

INTERIM DECISION

Adjudicator: Eric Whist Date: March 22, 2011 Citation: 2011 HRTO 571 Indexed as: Stillo v. Toronto Transit Commission

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application alleges discrimination in employment on the basis of disability. The applicant claims that the respondent did not accommodate her disability by failing to place her in an appropriate job. This Interim Decision deals with a request by the respondent that the Application be dismissed for delay and a request to resolve whether the applicant's union, the Amalgamated Transit Union, Local 113, (the "Union") should be added as a respondent.

BACKGROUND

2The Application was filed on July 31, 2010. On September 30, 2010, the respondent filed a Request for Order During Proceedings requesting access to the applicant's Occupational Health file and an extension of time to file its Response until such time that it could access and review this file.

3On October 5, 2010, the Union filled a Request to Intervene.

4By Interim Decision dated October 22, 2010, 2010 HRTO 2133, the Tribunal granted the Union's Request to Intervene and the respondent's request for an extension of time. The respondent was permitted to file its Response within 30 days of receiving arguably relevant portions of the Occupational Health file, which the applicant agreed to provide.

5The respondent filed its Response on November 29, 2010. In this Response, the respondent names the Union as an additional respondent asserting that the applicant makes allegations in the Application that could support a finding that the Union violated or jointly violated the Code. On February 9, 2010, the applicant filed her Reply in which she states that she strongly opposed the naming of the Union as a respondent. She asserts that she did not choose to name the Union as a respondent and, in her view, there are no allegations in the Application that could support a finding that the Union violated the Code. She submits that, as the applicant, she should have the ability to pursue her Application against the parties of her choice. The applicant expressed the further view that the Union should continue to be involved in the Application as an intervenor.

6On March 1, 2011, the Union filed a Request for Order During Proceedings (the "Union's Request") asking that the Tribunal clarify the Union's status as intervenor or respondent before the Union was required to file a Response. The Union opposes the respondent's effort to have it named as a respondent.

7On March 15, 2011, the respondent responded to the Union's Request reiterating its position that the Union should be named as a respondent.

8In its November 29, 2010 Response to the Application, the respondent also requests that the Application be dismissed for delay arguing that the Application was signed on July 29, 2010, which is over one year after the last cited incident of discrimination in the Application, specifically October 19, 2008 and beyond the time frame set out in section 34(1) of the Code for filing an application. The respondent argues that, even if there were further interactions between the applicant and the respondent over compensation after October 2008, they did not occur less than one year before the Application was filed. The respondent further submits that there is no legitimate basis for the delay in filing that would indicate that the delay was incurred in good faith pursuant to section 34(2) of the Code.

9The Applicant denies that the Application is barred from proceeding because of delay and states that she will fully respond to the respondent's assertions on this issue if directed by the Tribunal.

DECISION

10The Tribunal will hold a half-day in-person hearing to hear submissions and, if necessary, evidence on the respondent's request that the Application be dismissed for delay. For the purposes of considering this preliminary issue, the Union will maintain its intervenor status and will be allowed to make submissions. Any requests that the intervenor may have for a greater role on the preliminary issue of delay may be made to the presiding Tribunal Vice-chair or Member.

11The Tribunal will then hear oral submissions from the parties and the Union as to whether the Union should be named a respondent, in the event that the Application proceeds to be heard on its merits. The Union is not required to file a Response at this time.

12If either party or the intevenor wishes to file any documentation, including facts, material, witness statements or case law, they are required to deliver such documentation to the other party and file it with the Tribunal no later than 14 days prior to the date of the hearing.

13The Tribunal's cases can be found at www.canlii.org.

14I am not seized of this matter.

Dated at Toronto, this 22nd day of March, 2011.