Howard v. 407 ETR Concession, 2011 HRTO 823

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Faith Howard

Applicant

• and-

407 ETR Concession Company and Anita Delassantro

Respondents

-and-

Canadian Autoworkers Union Local 414

Intervener

INTERIM decision

Adjudicator: Ian R. Mackenzie

Date: April 27, 2011

Citation: 2011 HRTO 823

Indexed as: Howard v. 407 ETR Concession

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”), alleging discrimination in employment on the basis of race, colour and age. The hearing is scheduled for June 28 to 29, 2011. This Interim Decision addresses the following preliminary issues:

a. A Request to intervene by the applicant’s former bargaining agent;

b. A Request to remove Anita D’Alessandro as a respondent; and

c. The alleged delay in filing the Application.

Request to Intervene

2The applicant’s employment was terminated on April 14, 2009. At the time of the termination of her employment she was represented by a union. Her union, Canadian Autoworkers Union Local 414 (CAW), filed a Request to Intervene under Rule 11 of the Tribunal’s Rules of Procedure. The applicant did not make any submissions on the Request to intervene. The respondent did not make any submissions in response to the request to intervene. However, the respondent identified the union as an affected party in its response to the application.

3A union invariably has an interest in a human rights application by a former employee in a bargaining unit that it represents when there is an allegation of discrimination in employment. As stated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, unless there are exceptional circumstances, an application for intervenor status by the applicant’s bargaining agent will be granted.

4The Request of the CAW to intervene is granted and the style of cause amended accordingly.

Request to Remove Respondent

5Anita D’Alessandro was named as a respondent to the Application. Ms. D’Alessandro was the supervisor of the applicant. The respondents have requested in their Response that Ms. D’Alessandro be removed as a respondent.

6The applicant did not provide a Reply or submissions in response to the Request. If the applicant wishes to make submissions on the removal of the personal respondent as a party to the Application she must file them with the Tribunal with a copy to the respondents and the intervener by May 16, 2011. The Tribunal will decide this Request prior to the hearing.

Delay

7The respondents have raised a preliminary objection that most of the events described in the Application occurred outside of the one-year time limit required by the Code. The applicant did not provide submissions in response.

8Section 34 of the Code provides as follows:

(1) If a person believes that any of his 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.

9The applicant is directed to provide her submissions on whether some or all the events occurred outside the one year period identified in s.34(1)(a) or are a series of events within the meaning of s.34(1)(b). To be a “series of incidents” there must at least be some connection between the incidents that are alleged to form the series. See for example Diler v. Cambridge Memorial Hospital, 2009 HRTO 2143 and Baisa v. Skills for Change, 2010 HRTO 1621.

10If the last incident of alleged discrimination occurred more than one year prior to the filing of Application the applicant must explain how the delay was incurred in good faith and why she believes no substantial prejudice will result to any person affected by the delay. See for example Thomas v. Toronto Transit Commission, 2009 HRTO 1582; Miller v. Prudential Lifestyles Real Estate, 2010 HRTO.

11The applicant is directed to provide her written submissions on delay to the respondents and intervener and file them with the Tribunal by May 16, 2011. She may wish to review the Tribunal’s case law on delay available free of charge at www.canlii.org. After reviewing the submissions, I may decide the delay issue or issue further case management directions.

ORDER

12The Tribunal makes the following order:

a. CAW Local 414’s Request to intervene is granted;

b. The applicant may make submissions on the Request to remove the personal respondent by May 16, 2011; and

c. The applicant must make submissions on delay by May 16, 2011.

13I am not seized.