Gurmukh Singh v. Aaroport Limousine Services, 2012 HRTO 2393

Human Rights Tribunal of Ontario

Between:

Gurmukh Singh Applicant

-and-

Aaroport Limousine Services Respondent

-and-

World Sikh Organization of Canada Intervenor

Interim Decision

Adjudicator: Judith Keene Date: December 24, 2012 Citation: 2012 HRTO 2393 Indexed as: Singh v. Aaroport Limousine Services

Written Submissions

Gurmukh Singh, Applicant Piper Henderson, Counsel

Aaroport Limousine Services, Respondent Mark A. Stone, Counsel

World Sikh Organization of Canada, Intervenor Balpreet Singh Boparai, Counsel

Introduction

1This is an Interim Decision in respect of an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of creed. The applicant, a practising Sikh, asserts that the respondent’s rules pertaining to appearance, specifically a requirement that his beard be bound, infringes his right to equal treatment under the Code.

2This Interim Decision deals with a Request to Intervene filed by the World Sikh Organization of Canada (“WSO”), and with matters relating to the efficient conduct of a hearing scheduled for January 14, 2013.

3In its Request, the WSO states that it is a “nonprofit human rights organization with a mandate to promote and protect the interests of Canadian Sikhs, as well as to promote and advocate for the protection of human rights for all individuals, irrespective of race, religion, gender etc.” The Request describes numerous instances in which the WSO has been granted intervenor status in court proceedings.

4The WSO states that it would like to specifically address the issue of accommodation of the applicant's belief that the beard should not be trimmed, rolled or tied, citing the decisions of the Supreme Court of Canada in Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 SCR 551. The WSO also wishes to make submissions on the significance and importance of uncut and unrolled beards in the Sikh faith. Finally, the WSO wishes to make submissions on the test to be met in order for the applicant to establish that he has a right that must be accommodated, and on “the standard of undue hardship as it applies in this application”.

5The applicant supports the WSO’s request.

6The respondent opposes the Request. In the respondent’s submission, the main concern is that the participation of the WSO will unduly delay the determination of the issues raised in the application. The respondent notes that the parties are fully capable of arguing the law, and the Tribunal is fully capable of interpreting it. The respondent also indicates that the addition of an intervenor will “prejudice the rights of the respondent”, but does not explain this other than to note that additional hearing time will result in additional expense for the respondent.

Analysis

7Requests to intervene in matters before this Tribunal are governed by Rule 11 of the Tribunal’s rules of procedure (“Rules”), which 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.

8Neither the Rules nor the Code limit the Tribunal’s discretion to add parties or allow intervention. A number of decisions of the Tribunal have discussed factors for consideration in assessing a request for intervention. In D.R. v. Upper Grand District School Board, 2011 HRTO 1187 at para. 12, the Tribunal listed four factors:

i. Whether the intervenor has a significant interest or special contribution to make on the issues;

ii. Whether the intervenor is likely to provide assistance to the Tribunal that will not otherwise be provided;

iii. Whether the intervention will unduly delay, disrupt or prejudice the determination of the rights of the parties; and

iv. If intervention is appropriate, are there conditions that should be placed on the intervention.

9There appears to me to be no principled reason to limit the factors for consideration to those noted above, although they are helpful in focussing the inquiry. In CAW-Canada v. Presteve Foods Ltd., 2011 HRTO 1581, the Tribunal noted an important consideration related to the public interest in Code proceedings, which involve quasi-constitutional issues:

…in the new system in which individuals have direct access to the Tribunal and where the Ontario Human Rights Commission is not a party to every case, the Tribunal should be more liberal in granting intervenor status to groups and individuals who wish to bring forward their perspectives on the quasi-constitutional issues it hears, particularly where the issues have significant public importance. The Tribunal can apply its active adjudication approach to ensure that, once intervention status is granted, the intervenor’s evidence focuses on the issues of assistance to the Tribunal in the case and minimizes any resulting costs to the parties. (at para 10)

10In my view, the WSO meets the first two factors considered in Upper Grand District School Board (above), and is well-placed to make submissions on the significance and importance of uncut and unrolled beards in the Sikh faith, and thus to provide assistance to the Tribunal that appears unlikely otherwise to be provided.

11I agree with the respondent that the application of the relevant law can and should be dealt with by the parties, but here also, the WSO may have submissions to make that may be of assistance to the Tribunal.

12Based on the submissions summarized above and on the foregoing factors, I agree that the WSO should be granted intervenor status. The Request to Intervene by the WSO is granted.

Efficient Presentation of Evidence and Argument at the Hearing

13The WSO indicates that it intends to rely “on the facts as outlined in the application”. However, it also asserts that “many other limo and taxi companies allow Sikh drivers to maintain untied beards”. This raises the possibility that the WSO intends to bring evidence concerning the practices of “other limo and taxi companies”, a possibility that must be clarified before the hearing. If the WSO does intend to submit evidence concerning the practices of other limousine and taxi companies, it must write to the Tribunal, copying the parties, to identify what evidence it wishes to submit and how it proposes to adduce that evidence. If the WSO does wish to submit evidence, I will hear from the parties before ruling as to whether it may do so, and if so on what terms, as it is late in the proceedings for new evidence to be proposed.

14In respect of legal submissions, the intervenor may file written submissions, and may make oral submissions. It is expected that, where the intervenor agrees with the legal submissions of a party, it will simply indicate this rather than making duplicative submissions.

15The Response indicates that the respondent agrees with certain facts alleged by the applicant. On a review of the materials filed by the parties, it appears to me that the parties agree on more points than the respondent has identified. While there are certainly differing allegations in respect of a number of the facts, the parties appear to agree in respect of the following:

a) The applicant commenced his employment with the respondent in February of 2009. His work consisted primarily of transporting customers to and from Pearson international Airport in a limousine and maintaining his limousine in the condition prescribed in the respondent's rules and regulations.

b) At the relevant time, the respondent maintained dress code and uniform requirements for drivers.

c) The applicant complied with the respondent’s requirement that a black turban be worn and his beard be rolled from the time he was hired until November 2010.

d) The applicant was directed to attend a meeting with representatives of the respondent. The meeting, held on June 30, 2011, was to discuss why the applicant now refused to roll his beard. The applicant indicated that he wanted to speak to a union representative and wanted the policy in writing.

e) At the meeting of June 30, 2011, the applicant was advised that if he did not comply with the company's uniform/appearance policy, he would be “put off the air” (would not receive dispatch orders). He was in fact taken “off the air” following the meeting.

f) Since September 22, 2011, the applicant has not worked as a driver with the respondent, because of a non-work-related injury.

16If I am incorrect in the above-noted view of agreed facts, I will hear from the parties concerning this at the hearing. If the parties can identify any other agreed facts, this would be of considerable assistance.

Order

17The Tribunal makes the following Order:

a) The World Sikh Organization of Canada is added to the application as an intervenor, and the style of cause is amended accordingly.

b) If the intervenor proposes to submit evidence concerning the practices of other limousine and taxi companies, it must, within five days of the date of this Interim Decision, write to the Tribunal, copying the parties, to identify what evidence it wishes to submit and how it proposes to adduce that evidence.