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Rose Fababeir v. City of Toronto, 2011 HRTO 75 — HRTO | minicounsel | minicounsel

January 10, 2011

Rose Fababeir v. City of Toronto, 2011 HRTO 75

Case Summary

The applicant filed a human rights application alleging discrimination in employment on the basis of creed, claiming her employer failed to accommodate her inability to work on Sundays. The applicant's union requested intervenor status, which the applicant opposed. The Tribunal granted the union's request to intervene, noting that a bargaining agent almost always has an interest in a member's application. The respondent requested that the application be dismissed for delay. The Tribunal denied the request to dismiss at this stage, finding insufficient information to determine whether the allegations constituted a series of incidents within the one-year time limit.

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rose Fababeir

Applicant

-and-

City of Toronto

Respondent

-and-

Canadian Union of Public Employees, Local 79

Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend

Date: January 10, 2011

Citation: 2011 HRTO 75

Indexed as: Fababeir v. Toronto (City)

[1] The applicant filed this Application on June 29, 2010, under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination in employment on the basis of creed. This Interim Decision addresses the following issues: (1) the request to intervene; and (2) the respondent’s request to dismiss all or part of the Application on the basis of delay.

[2] The applicant worked as a Support Worker at the Bendale Acres Home for the Aged (“Bendale”). She alleges that her creed precludes her from working on Sundays.

INTERVENTION

[3] The applicant’s bargaining agent, Canadian Union of Public Employees, Local 79 (“CUPE”), filed a Request to Intervene (Form 5) as an interested party. It notes that the applicant alleges in her Application that she approached CUPE and that it failed to provide her with any assistance. Moreover, it submits that the Application could affect the other members of the bargaining unit, whom it also represents, who work at Bendale and the respondent’s other Homes for the Aged.

[4] The applicant opposes the intervention request on the basis that the union “does not consider the law of human rights.” The respondent did not file a response to the Request to Intervene.

[5] A union almost always has an interest in a human rights application involving a member, and unless there are exceptional circumstances, the Tribunal will grant the bargaining agent intervenor status when requested. I can see no reason, to deny CUPE’s request to intervene in this case. The applicant’s opposition to the request is simply a statement of her belief that the union does not consider human rights. In any event, it would not be appropriate for the Tribunal to undertake an inquiry about CUPE’s relative commitment to human rights as a pre-condition for determining whether to grant it intervenor status.

[6] The Request to Intervene is granted. The extent of CUPE’s participation in the Tribunal’s proceedings will be determined by the Vice-chair or Member assigned to determine the issue or issues as they arise.

DELAY

[7] Section 34 states, in part:

(1) If a person believes that any of her or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

[8] The Application discusses allegations, which the applicant says form an ongoing pattern of refusal to accommodate her religious observances from March 2007 to the present. The respondent alleges in the Response that there was no change in policy in 2007, as alleged by the applicant, and that for a substantial period of time during this period it did not receive any forms from the applicant indicating her ability to work. In her Reply, the applicant alleges ongoing efforts made by her, and denies that she was not requesting accommodation during this period.

[9] At this stage in the proceedings, there is insufficient information on which to make a finding with respect to whether there was a series of incidents, or discrete incidents, some of which fall outside the one-year time limit. In order to make this finding, it may be necessary to make findings with respect to some of the central allegations of discrimination and the defence to those allegations. Such finding are best made by the Vice-chair or Member assigned to hear the matter.

[10] Accordingly, the Request to dismiss on the basis of delay is denied at this time. This does not preclude the parties from raising the issue of delay in argument at the hearing.

[11] I am not seized of this matter.

Dated at Toronto, this 10th day of January, 2011.

“Signed by”

Naomi Overend

Vice-chair