HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
J.C. by his next friend R.C.
Applicant
-and-
Smylie’s Independent Grocers
Respondent
-and-
Canadian Auto Workers, Local 414
Intervenor
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: J.C. by his next friend R.C. v. Smylie’s Independent Grocers
1The applicant’s father filed this Application on behalf of his minor son on November 16, 2010, alleging discrimination in employment on the basis of disability, age and record of offences contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The Application was deferred by way of Interim Decision 2011 HRTO 1941 pending the conclusion of an Ontario Labour Relations Board (“OLRB”) proceeding involving the applicant. In the Interim Decision, the Tribunal noted that the Canadian Auto Workers, Local 414 (“CAW”), the certified bargaining agent of the applicant’s workplace, applied for intervenor status in this Application. The Interim Decision ordered that the CAW’s request to intervene would be dealt with by the Tribunal when the Application was reactivated.
3Upon confirmation that the OLRB matter was no longer proceeding, the Tribunal ordered, by way of Interim Decision 2011 HRTO 2189, that the Application be reactivated.
4On February 2, 2012, the applicant filed a Request for Order During Proceedings (“Request”) and asked that the Tribunal 1.) order production of documents and 2.) remove the individual representing the CAW from the proceeding. The applicant submits that the basis for request to remove the CAW representative is the applicant’s belief that the representative is dishonest. The applicant did not specify what documents were being sought for production. The applicant indicates that he seeks that the Tribunal deal with these requests by way of an in person hearing.
5On February 14, 2012, the CAW wrote to the Tribunal and advised that the applicant did not copy the CAW with his Request and that the CAW only received notice and a copy of the Request through counsel for the respondent. The CAW objects to the applicant’s Request and indicates that Request is nothing more than a bald accusation and highly irregular.
6On February 16, 2012, the respondent filed submissions in support of the CAW’s request to intervene and opposing the applicant’s request to remove the CAW representative. The respondent indicates that the Tribunal should follow its usual practice of granting intervenor status to a union where the nature of the Application engages provisions of the collective agreement.
Applicant’s Request for In-Person Hearing
7The Tribunal’s Rules of Procedure (“Rules”) provides the Tribunal with broad discretion to direct how a matter will be dealt with and determined. In my view, an in-person hearing is not necessary to deal with the preliminary issues raised by the applicant and a written process is the speedier way of addressing the requests. Previous Tribunal decisions have determined issues of this nature based only on parties’ written submissions.
Applicant’s Request for Production of Documents
8The applicant provided no particulars with respect to the production request. I note that Rule 16 of the Tribunal’s Rules of Procedure contemplates that parties will exchange arguably relevant documents 21 days after the Notice of Hearing is sent out by the Tribunal, which has not yet occurred in this case. Consequently, the Tribunal must deny the applicant’s request for disclosure because there is no information about the basis of the request or the items sought and the request is premature.
CAW’s Request to Intervene
9The CAW is the certified bargaining agent for a group of workers at the respondent workplace. The CAW submits that, although probationary employees like the applicant have limited rights under the collective agreement, the union still represents probationary employees. The CAW requests to intervene on a limited basis and seeks to address matters related to the collective agreement and to make submissions on the issue of remedies.
10The applicant opposes CAW’s request to intervene and submits that the request is not valid. The applicant appears to suggest that the CAW should be denied intervenor status because it has not properly represented the applicant’s interests.
11In accordance with Rule 11 of the Tribunal’s Rules of Procedure, the Tribunal may allow a person or organization to intervene in any case at any time on such terms as the Tribunal may determine. Tribunal jurisprudence has articulated a number of factors for consideration in assessing a request for intervention:
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.
12Based on the information in the file, I am satisfied that the CAW has an interest in the outcome of the Application and that it will be of assistance to the Tribunal in addressing some of the matters at issue, in particular matters with respect to probationary employees. The Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131:
A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.
13I appreciate that the applicant’s allegation is that he did not receive fair representation from the CAW. I find, however, the applicant’s objection does not override the CAW’s interest in the Tribunal proceeding given that provisions of the collective agreement may be considered and that other union members may be impacted by the findings reached in the proceeding.
14Accordingly, I hereby grant the CAW status as an intervenor. The adjudicator overseeing the hearing on the merits will determine the scope of the CAW’s intervention and what extent the CAW will be permitted to participate in the hearing in regards to evidence and submissions.
Applicant’s Request to Remove CAW Representative
15The applicant’s request to remove the representative of the CAW is denied. The applicant alleges that he perceives the representative to be dishonest. However, the applicant has raised no specific professional and ethical conflict of interest concerns to support the Tribunal’s exercise of such an extraordinary measure. The applicant provided no information to substantiate that it would inappropriate for the Tribunal to allow the representative to participate in the proceeding. Further, as stated in Nolan v. Vale Inco, 2010 HRTO 1758, the jurisprudence suggests that a party’s right to retain a representative of their own choosing should not be interfered with lightly.
Order
16The Tribunal orders that the CAW is granted intervenor status and the style of cause is amended to reflect the same.
17All parties are reminded that Rule 1.12 requires that written correspondence and documents sent to or filed with the Tribunal must be copied and delivered to all other parties or the party’s representative if a party is represented.
18I am not seized of this matter.
Dated at Toronto, this 29th day of February, 2012.
”signed by”
Ena Chadha
Vice-chair