Faysal v. General Dynamics Land Systems - Canada, 2012 HRTO 1916

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elie Faysal

Applicant

-and-

General Dynamics Land Systems - Canada

Respondent

-and-

Canadian Auto Workers’ Union - Canada and

Canadian Civil Liberties Association

Intervenors

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: October 9, 2012

Citation: 2012 HRTO 1916

Indexed as: Faysal v. General Dynamics Land Systems - Canada

WRITTEN SUBMISSIONS

Elie Faysal, Applicant Anne Marie Frauts, Adrian Cameron, and Andrew Lokan, Counsel

General Dynamics Land Systems - Canada, Respondent Margaret Szilassy and George Avraam, Counsel

Canadian Auto Workers’ Union - Canada, Intervenor Lewis Gottheil, Counsel

Canadian Civil Liberties Association, Intervenor Sukanya Pillay, Counsel

Introduction

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 with respect to employment because of place of origin and citizenship. The purpose of this Interim Decision is to address the scope of the Union’s and the CCLA’s respective interventions and to determine the admissibility of a proposed witness’s evidence.

2The background and issues involved in this Application are well summarized in an earlier Interim Decision, 2011 HRTO 1072, at paragraphs 2 to 13:

The respondent is a Canadian subsidiary of General Dynamics Land Systems, a global supplier of land and amphibious armoured vehicles. The applicant is employed as a Quality Assurance Inspector in the respondent’s manufacturing plant in London, Ontario.

The applicant is a dual citizen of Canada and Lebanon. He has worked for the respondent and its predecessor since 1978. He is a member of the Canadian Auto Workers’ Union (“Union”) and the terms of his employment are governed by a collective agreement between the respondent and the Union.

The respondent manufactures military vehicles for, among others, the United States Department of Defense. In order to do this, the respondent states that it must have access to materials, including blueprints, data, equipment, plans, and information (collectively referred to as “Controlled Goods”) that are controlled by legislation in both Canada and the United States.

The legislative framework is somewhat complex and, as it is not necessary for the purposes of this Interim Decision, I will not review it in detail at this stage. Briefly put, there is a Memorandum of Understanding between Canada and the United States establishing a joint certification program. Under the joint certification program, Canadian companies may be eligible to access Controlled Goods in order to manufacture defence articles. Their access to Controlled Goods is governed, in part, by Canadian federal regulations, including the Technical Data Control Regulations, SOR/2001-32 (“TDI Regulations”). The TDI Regulations incorporate the United States’ International Traffic In Arms Regulations, 22 C.F.R. Parts 120 – 130 (“ITAR”).

The respondent states that the application of Canadian and American legislation, specifically the ITAR, limits its ability to share important information with employees, such as the applicant, who are nationals or dual citizens of particular countries.

Section 126.1 of the ITAR stipulates that, absent specific authorization, dual nationals and third country nationals from specific countries may not engage in the manufacture of defence articles or services using the United States’ technical information. Lebanon is among the “embargoed countries” listed at section 126.1 of the ITAR.

The respondent states that, absent specific authorization from the United States State Department, it may not give the applicant access to ITAR-controlled technical information. It states that a similar requirement is also part of its contractual obligations with the Canadian government.

There appears to be no dispute that the applicant requires access to Controlled Goods in order to do his job as a Quality Assurance Inspector. Because of ITAR requirements, the applicant could no longer access Controlled Goods as of approximately 2007. The respondent placed the applicant on a paid furlough in 2007.

The respondent eventually secured a time-limited authorization for the applicant to access ITAR-controlled information, and the applicant returned to active employment from January 5, 2009 to March 17, 2009. The authorization expired in March 2009 and the applicant has been on paid furlough since that time. During the paid furlough, the applicant received his full salary and benefits. There is, however, a dispute between the parties as to whether the applicant was appropriately compensated for overtime work or loss of opportunity to do overtime work.

The allegations

The applicant alleges that the respondent’s application of the ITAR has had a discriminatory and differential effect on him because of his place of origin and citizenship. He also alleges that the respondent breached minutes of settlement entered into by the parties in 2007. In particular, he alleges the respondent breached the minutes of settlement because it:

a. failed to take reasonable steps to attempt to (i) ameliorate the impact of differential treatment on him and (ii) secure lawful permission to minimize or eliminate differential treatment, as required by the Minutes of Settlement;

b. denied him overtime pay, taking the position that the applicant would not have been able to work overtime following a motor vehicle accident in September 2007.

The respondent denies the allegations of discrimination. It also denies any breach of the minutes of settlement.

The respondent states that it behaved in good faith and in compliance with its legal obligations, that it made reasonable efforts to minimize or eliminate any differential impact on the applicant, and that it accommodated him by providing him with paid furlough. It states that the determination of overtime pay would be more appropriately dealt with through a grievance pursuant to the collective agreement.

In the Interim Decision, supra, the Tribunal declined to strike the applicant’s Notice of Constitutional Question and granted intervenor status to both the Union and the CCLA, but did not decide the scope of their respective interventions.

The Tribunal directed the parties, among other things, to make further submissions on the scope of interventions as well as the proposed evidence of Michael Lerner.

Scope of the Union’s Intervention

3The Union seeks to intervene on the following terms:

The right to call evidence, cross-examine, and make oral argument and/or written arguments with respect to the following issues:

• The alleged failure of the respondent employer to properly compensate the applicant with respect to his deemed overtime and/or overtime opportunities during any period found to be relevant to this application;
• More generally, the substance of the rules pertaining to overtime pay and lost overtime opportunity compensation as set out in the then subsisting collective agreement between the union and the employer, during any period found to be relevant to this application;
• Whether the applicant has been subject to an unlawful discriminatory practice, and if whether the respondent employer offered and/or provided appropriate measures of accommodation required by law, and if not what these measures ought to be, assuming a discriminatory practice has been made out;
• The merits of the request for an Order During Proceedings filed May 25, 2011, by the respondent employer seeking to strike the Notice of Constitutional Question and enforce Minutes of Settlement entered into by the applicant and the respondent in October 2007; and,
• The merits of the Constitutional Question, namely (a) the applicability, validity, and effect of section 6(1)(e) and 6(1)(f) of the technical data control regulations, SOR/86-345, of the Controlled Goods Regulation, SOR/2001-32 of the Defence Production Act, R.S.C. 1985, Chapter D-1, as amended, section 3(1)(c) of the Export Permits Regulation SOR/97-204 of the Export and Imports Permits Act, R.S.C. 1985, Chapter E-19, as they relate to “controlled goods” and (b) the constitutional applicability, validity and effect of those contracts entered into by the respondent and Her Majesty in Right of Canada that contractually oblige the respondent to comply with ITAR.

4In support of the request for such a broad intervention, the Union submits that it has an interest in the interpretation of the overtime distribution rules contained in the collective agreement between the Union and the respondent, which are in issue in this Application. The Union is also interested in the accommodation issues raised in the Application, which impacts upon the Union’s legal obligations as a bargaining agent. The Union submits that it has expertise and knowledge regarding the issues of overtime pay and accommodation, in particular with respect to the applicant’s entitlement to overtime pay between April 12, 2007, and August 23, 2008. The Union therefore submits that it can assist the Tribunal regarding question of fact related to the position the Union has taken regarding the applicant’s entitlements.

5The Union notes that, while it is not a respondent to the Application, the applicant nonetheless implicates the Union in several of the allegations directed at the respondent. The Union further submits that the Application will inevitably involve interpretation of overtime provisions in the collective agreement and Minutes of Settlement made by the Union to further the applicant’s claim for overtime. The Union also submits that potential remedies regarding overtime and accommodation measures to address the negative impacts of ITAR on the applicant will impact other employees represented by the Union and the administration of the collective agreement.

6The Union also submits that a ruling in favour of the impugned regulations may cause the respondent to lose or suffer abridgement of work regarding a contract with an American contractor. This result would endanger the employment of hundreds of Union members. The regulations in question directly impact the working conditions of its members. The Union therefore submits that it should able to fully participate in the deliberations dealing with these matters.

7The applicant submitted that the scope of the Union’s intervention should be limited as follows:

• The Union not be allowed to cross-examine the applicant or his witnesses;
• The Union not be allowed to cross-examine the respondent’s witnesses and similarly, the respondent ought not be able to cross-examine any witness called by the Union; and
• The Union be restricted to calling evidence with respect to the issues in the Application that have not already been dealt with by the applicant or the respondent.

8The applicant states that he does not object to the Union making submissions and argument that is helpful to the Tribunal and not unduly repetitious of the respondent’s submissions. However, the applicant submits that the Union seeks to intervene as if it were a party to the Application, although the applicant seeks no remedy against it. Further, the applicant submits that the interests of the respondent and Union are closely allied. Accordingly, the applicant submits that the respondent and Union should not be allowed to cross-examine each other’s witnesses, citing Wingold v. W.B. Sullivan Construction Ltd. (1981), 20 C.P.C. 76 (Ont H.C.).

9In any event, the applicant notes that the Union has indicated that it will not call its proposed witness, Craig McLarty, the Local Union Chair, should his evidence be addressed through another witness. The applicant submits that the Union’s proposed evidence can be elicited from the respondent’s witnesses. The applicant submits that the Union’s appreciation of overtime rules or how the Union came to an agreement with the respondent regarding the applicant’s overtime entitlements is irrelevant.

Analysis and Decision

10Pursuant to Rule 11 of the Tribunal’s Rules of Procedure, the Tribunal may grant intervention status to an organization that complies with the requirements of Rule 11 and will determine the extent to which an intervenor will be permitted to participate in a proceeding. In exercising its discretion, the Tribunal is generally guided by the following non-exhaustive considerations:

(a) whether the intervention will unduly delay or prejudice the determination of rights of the parties to the proceeding;

(b) whether the applicant has a significant interest in the issue on which intervention is sought; and

(c) whether the applicant is likely to provide assistance to the Tribunal that will not otherwise be provided.

See Jeppersen v. Ancaster (Town), [2001] O.H.R.B.I.D. No. 1, and Carasco v. University of Windsor, 2011 HRTO 630.

11The Tribunal has already granted the Union intervenor status in recognition of its interest in the subject matter of the Application. While I agree the Union has an interest in this Application, I am not convinced, at this time, that granting it the broad intervention that it seeks is likely to provide assistance to the Tribunal that will not otherwise be provided.

12In this particular case, it is clear that the Union agrees with the manner in which the respondent accommodated the applicant to minimize the effect of the ITAR and other impugned regulations on the applicant. The Union also agrees with the amount of overtime imputed to the applicant. The evidence that the Union states it may call would address how the applicant’s entitlement to overtime was calculated. The Union has given no indication that the respondent’s witnesses will be unable to adduce sufficient evidence on the issues of accommodation or overtime pay to permit the Tribunal to form a satisfactory appreciation of the facts. In these circumstances it seems likely that the Union’s evidence will be repetitious. I would also note that the Union’s concern regarding the potential future effect that a ruling in this matter would have upon the employment interests of the Union’s members to be limited, given subsequent changes to ITAR have reduced or eliminated the negative consequences for employees with dual citizenship such as the applicant.

13In my view, the Union has not suggested that it is in a position to provide any particular assistance regarding the merits of the issues raised in the Notice of Constitutional Question. I also see no compelling reason at this time to allow the Union to cross-examine witnesses. The Union’s interests are essentially allied with the respondent and it would not be appropriate to permit the Union to cross-examine the respondent’s witnesses. There is no indication that the respondent will be unable to cross-examine the applicant’s witnesses effectively or that allowing the Union to cross-examine will assist the Tribunal. Allowing the Union to cross-examine will, however, undoubtedly lengthen the hearing.

14Accordingly, granting the Union the right to intervene in the broad manner it seeks, including cross-examination, will in my view add undue delay and complexity to a proceeding that is already complex and promises to be quite lengthy. It may be appropriate to revisit the scope of the Union’s participation depending on the evidence adduced regarding the Union’s conduct or should it become apparent that broader participation can assist the Tribunal.

The CCLA

15The CCLA seeks to intervene regarding the following issues:

• Whether application of the ITAR in the workplace constitutes discrimination pursuant to section 5 of the Code; and
• Whether federal laws or agreements prescribing application of the ITAR in the workplace are superceded by Canada’s binding legal commitments to human rights, pursuant to the Canadian Charter of Rights and Freedoms, the Charter of the United Nations, and other relevant international laws.

16The CCLA submits that it will be able to assist the Tribunal because of its expertise, special knowledge and perspective on the issues of discrimination, civil liberties and Canada’s binding international legal commitments as they relate to this Application. The CCLA submits that its participation will not unduly delay the proceeding or unfairly prejudice the other parties, as it seeks only to make oral and written submissions and does not seek to call evidence or to cross-examine witnesses.

17In Interim Decision 2011 HRTO 1072, the Tribunal granted the CCLA intervenor status regarding the first of the two issues it identified, i.e., whether application of the ITAR in the workplace constitutes discrimination pursuant to section 5 of the Code. The Tribunal declined to allow the CCLA to intervene regarding the second issue it identified, at that time. The Tribunal noted that it had declined to strike the Notice of Constitutional Question, but stated that it was not clear that the second issue identified by the CCLA (whether federal laws or agreements prescribing application of the ITAR in the workplace are superceded by Canada’s binding legal commitments to human rights, pursuant to the Canadian Charter of Rights and Freedoms, the Charter of the United Nations, and other relevant international law) is clearly before the Tribunal.

18Since that Interim Decision, however, the constitutional issues arising out of this Applicant, both in terms of federalism and the Charter of Rights and Freedoms, have become more apparent. The respondent initially advanced, but later abandoned, the position that the doctrine of interjurisdictional immunity barred the Application and has reserved the right to advance other federalism-related defences, including paramountcy. At this stage, it appears that a challenge to the constitutional validity of the impugned regulations, pursuant to the Charter, as described in the Notice of Constitutional Question will be an integral part of the applicant’s legal position in these proceeding. Consequently, it now seems that Charter issues are squarely before the Tribunal.

19I am satisfied that the CCLA has an interest in the Charter issues raised in the Notice of Constitutional Question. I am also satisfied that the CCLA has expertise regarding these issues and is likely to provide assistance to the Tribunal that would not otherwise be available. The CCLA seeks only to make written and oral submissions; therefore, the CCLA’s intervention would not in my view unduly delay or prejudice the determination of the rights of the parties to the proceeding. Accordingly, I find it appropriate to exercise my discretion to allow the CCLA to intervene in these proceedings regarding the Charter issues raised by the applicant.

The Evidence of Michael Lerner

20The parties settled an earlier Human Rights Complaint (the “Complaint”) and Michael Lerner represented the applicant during those proceedings and is now a part-time Member of the Tribunal. The applicant submits that the Minutes of Settlement and Release, dated October 19, 2007, relate only to the Complaint and do not release the respondent from the issues arising in this Application. The applicant proposes to call Mr. Lerner as a witness to give evidence, and to produce correspondence between the parties, with respect to the circumstances and the issues in the contemplation of the parties at the time the Minutes of Settlement and Release were executed.

21The applicant referred to White v. Central Trust Company (1984) D.L.R. (4th) 236 (N.B.C.A.), Hill v. Nova Scotia (Attorney General), 1997 CanLII 401 (SCC), [1997] 1 S.C.R. 69, and Abundance Marketing v. Integrity Marketing, 2002 CanLII 23605 (ON SC), regarding the techniques employed when interpreting a release. In particular, the cases stand for the proposition that the context in which a release is executed may assist in determining the intent of the parties. In Abundance Marketing, the Court noted that context may be derived from the exchange between the parties leading to the creation of the document; the actual creation of the document; the conduct of the parties before, during and after execution; and any personal circumstances of a party which would impact upon comprehension or understanding.

22The respondent submits that the applicant cannot use Mr. Lerner’s evidence to ignore the clear and unambiguous language of the Release. The respondent submits that this amounts to a veiled attempt to void the agreement.

23The respondent submits that the Minutes of Settlement and the Release constituted a full, final and complete settlement of all matters relating to or arising out of (i) the complainants’ employment with or service performed for the respondent, and (ii) all matters that were, or could have been raised in the Complaints, and (iii) the conduct of the respondent to the complainants’ to the date of execution, i.e., October 19, 2007. The respondent submits that the Tribunal may not ignore the clear words of the Minutes of Settlement and Release unless the Applicant can demonstrate some impropriety in coming to agreement and cites Better Beef Ltd. v. Maclean, 2006 CanLII 17930 (ON SCDC). The respondent submits that the applicant has provided no such evidence.

24The respondent submits that in two of the cases the applicant relies upon, White and Abundance Marketing, the Courts confirmed that the starting point for analysis is the actual words of the Release in question and although context may be helpful “the words used govern”. Moreover, these cases clearly state that the subjective beliefs and interpretations of the parties are not relevant to the interpretation of the terms of the Minutes of Settlement and Release. The respondent submits that the applicant’s compensation issues to the date of the Minutes of Settlement and the release are clearly and unambiguously covered by words of those documents.

25The Union submits that the applicant seeks to alter or abridge the clear language of the Minutes of Settlement and the Release. The Union submits language of the Minutes of Settlement and the Release is unambiguous; therefore, extrinsic evidence is inadmissible.

Analysis and Decision

26For the following reasons, I find that Mr. Lerner’s evidence regarding the Minutes of Settlement and the Release is not admissible.

27I find no basis for admitting extrinsic evidence regarding the interpretation of the Minutes of Settlement and the Release the parties executed to resolve the earlier Human Rights Complaint. In Eli Lilly & Co. v. Novopharm Ltd., 1998 CanLII 791 (SCC), [1998] 2 S.C.R. 129 (S.C.C.), the Supreme Court of Canada confirmed that extrinsic evidence is inadmissible regarding the interpretation of a contract when the contract is clear and unambiguous on its face and stated as follows at paragraph 55:

Indeed, it is unnecessary to consider any extrinsic evidence at all when the document is clear and unambiguous on its face. In the words of Lord Atkinson in Lampson v. City of Quebec (1920), 1920 CanLII 373 (UK JCPC), 54 D.L.R. 344 (P.C.), at p. 350:

. . . the intention by which the deed is to be construed is that of the parties as revealed by the language they have chosen to use in the deed itself .... [I]f the meaning of the deed, reading its words in their ordinary sense, be plain and unambiguous it is not permissible for the parties to it, while it stands unreformed, to come into a Court of justice and say: “Our intention was wholly different from that which the language of our deed expresses. . . .”

The Tribunal has declined to consider extrinsic evidence when considering settlement terms in Contravention Applications. See: Brown v. Primary Response Inc., 2012 HRTO 424, Ihasz v. Ontario (Revenue), 2011 HRTO 1991, and Barter v. Bata, 2010 HRTO 325.

28In my view, extrinsic evidence is admissible to assist in the interpretation of a contract only when the party seeking to admit the evidence first establishes that the language of the contract in question is unclear or is in some manner ambiguous. In the cases the applicant cites, the intentions of the parties were not clear on the face of the documents in question and resort to extrinsic evidence was appropriate and necessary. The applicant has not suggested that the language of the Minutes of Settlement or the Release is in any way unclear or unambiguous. Consequently, I find that extrinsic evidence such as Mr. Lerner’s proposed testimony regarding the Minutes of Settlement and the Release is inadmissible.

29The parties also made very able and thorough submissions regarding whether allowing Mr. Lerner to testify would raise a reasonable apprehension of bias. Having ruled Mr. Lerner’s evidence to be inadmissible, I need not address this issue.

Order

30The Tribunal orders as follows:

a. The Union’s intervention is limited to making written and oral submissions;

b. The CCLA may intervene as described in Interim Decision 2011 HRTO 1072 and may also make written and oral submissions regarding the Charter issues arising in this Application; and

c. Extrinsic evidence is not admissible regarding the Minutes of Settlement and Release.