Shirley McKenzie v. Sheridan Villa Long Term Care Facility, 2011 HRTO 655

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shirley McKenzie

Applicant

-and-

Sheridan Villa Long Term Care Facility

Respondent

-and-

Canadian Union of Public Employees and its Local 966

Intervener

INTERIM DECISION

Adjudicator: Alan G. Smith Date: April 5, 2011 Citation: 2011 HRTO 655 Indexed as: McKenzie v. Sheridan Villa

WRITTEN SUBMISSIONS

Shirley McKenzie, Applicant ) Self-represented

Sheridan Villa Long Term Care Facility, ) John H. Gescher, Counsel Respondent )

Canadian Union of Public Employees and ) Paul O’Ryan, Counsel its Local 966, Intervenor )

Background

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on October 18, 2010. The respondent filed a Response on December 3, 2010. The Response contained a Request to defer the Application pending the outcome of an on-going workplace grievance arbitration process

2The applicant is represented by a certified bargaining agent, The Canadian Union of Public Employees (“CUPE”), and its Local 966.

3Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application.

4The Tribunal issued a Notice of Intent to Defer on December 8, 2010 which requested submissions from the parties by December 22, 2010, on the question of deferral pending the resolution of the grievance proceeding. The Tribunal has received submissions from the applicant and intervenor with regard to the Request to defer.

5On March 4, 2011, the Tribunal received a Request to Intervene from CUPE.

Deferral

6In their respective submissions both the applicant and intervenor confirm that the grievance referred to by the respondent has been withdrawn by CUPE. Although some issues identified in the Application have been resolved, the key issue of monetary compensation for the alleged for workplace harassment remains outstanding. Both the applicant and intervenor therefore oppose deferral of the Application.

7The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. In this case it appears there is no on-going proceeding to which the Tribunal might defer.

8The Request to Defer is therefore denied.

Request to Intervene

9CUPE is seeking to intervene on the basis that it has an interest in the outcome of the litigation. CUPE asserts that the Application raises issues which, “at minimum are of general interest to the Local Union and therefore sufficiently warrant intervenor status”.

10The 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.

11As 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.

12In this case I find that it would fair, just and expeditious to permit CUPE to intervene in this Application. The extent of CUPE’s participation in any future proceedings will be determined by the Vice-chair or Member who presides over those proceedings.

13I am not seized of this matter.