HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lillian Thorpe
Applicant
-and-
InnVest R.E.I.T. and Sheila Bateman
Respondents
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Thorpe v. InnVest R.E.I.T. and Sheila Bateman
1This Application, filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination in employment on the basis of race and colour. In her Application, the applicant advises that she is a member of the National Automobile Aerospace, Transportation and General Workers Union of Canada (CAW)-Canada Local 127 (the “CAW”), which was then given notice of the proceedings.
2Following receipt of the Application, the CAW filed a Request to Intervene (Form 5). The applicant and the respondents did not take advantage of their opportunity under Rule 11.4 of the Tribunal’s Rules of Procedure to file a response to the Request to Intervene, and have therefore neither agreed nor objected to the proposed intervention.
3A 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 (see Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131). I see no exceptional circumstances in this case and the CAW’s Request to Intervene is granted. There may be issues as to how this intervention will take place but these are matters best dealt with at the hearing.
[4] This Interim Decision also alerts the applicant and respondents to the fact that they have failed to comply with the obligations under Rules 16 and 17 to deliver to every other party and file with the Tribunal a witness list, witness statements, and copies of documents the party intends to rely upon no later than 45 days prior to the hearing. There are serious consequences for the case if this step is not taken, set out at the end of this Interim Decision.
[5] The Notice of Confirmation of Hearing summarized the requirements as follows:
Unless otherwise directed by the HRTO, not later than June 4, 2012 you must deliver to every other party and file with the HRTO:
a list of all documents you intend to rely on at the hearing;
a copy of each document on that list for the HRTO;
a copy of every document on that list for each party or confirmation every document has already been provided to the other parties;
a witness list that includes the name of every witness, including expert witnesses, you intend to present to the HRTO;
a statement summarizing the expected evidence of each witness;
where you intend to rely on the evidence of a proposed expert witness, a copy of the expert’s written report or a full summary of the expert’s proposed evidence and the expert’s curriculum vitae;
the Statement of Delivery of the Rule 16.2 list and documents on the other parties.
[6] In C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426, the Tribunal explained, at para. 7:
The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.
DIRECTION
[7] The applicant is directed to immediately file the materials required under Rules 16 and 17, and if the applicant has not done so within 7 days of the date of this Interim Decision, the Application may be dismissed as abandoned. AND the respondents are directed to immediately file the materials required under Rules 16 and 17, and if the respondent has not done so within 7 days of the date of this Interim Decision, the Tribunal may take any or all of the steps in Rule 5, including not permitting the respondent to call any witnesses at the hearing.
Dated at Toronto, this 3rd day of July, 2012.
“signed by”
Eric Whist
Vice-chair