Farrukh Effendi v. Securitas Canada Limited, 2012 HRTO 5

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Farrukh Effendi

Applicant

-and-

Securitas Canada Limited

Respondent

United Steelworkers, Local 5296

Intervenor

Interim Decision

Adjudicator: Naomi Overend

Date: January 3, 2012

Citation: 2012 HRTO 5

Indexed as: Effendi v. Securitas Canada Limited

1This Interim Decision addresses the respondent’s Request for Order During Proceedings (Form 10) requesting the Tribunal dismiss portions of this Application on the basis of delay and abuse of process. For the reasons discussed below, the Request to dismiss is denied.

2This Interim Decision also addresses the Request to Intervene made by the applicant’s union, the United Steelworkers, Local 5296 (“Local 5296”).

3The applicant filed an Application against the respondent on April 21, 2011 alleging discrimination in employment on the basis of age, creed and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The applicant, who is employed by the respondent as a security guard alleges he was given less desirable postings and subject to unwelcome comments because he was older and a practising Muslim, and also because he had filed and settled a grievance in which he asserted age discrimination.

REQUEST TO INTERVENE

7The Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 that:

4. 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.

8The respondent filed a Response in which it took no position with respect to Local 5296’s Request to Intervene. The applicant, however, filed a Response in which he opposed Local 5296’s Request on the basis that its interest in intervening is to defend its conduct vis-à-vis the applicant.

9Local 5296 is not a respondent to this Application, and it would be inappropriate for the parties to thoroughly explore whether or not it served the applicant’s interest. Having said that, the applicant does refer to his union’s involvement in his Application and it may be necessary to hear from Local 5296 to clarify certain factual issues that provide context to the remainder of the Application. The adjudicator assigned to hear this matter can determine what, if any, factual disputes are appropriately before the Tribunal.

10I am satisfied that Local 5296 has sufficient interest in this Application to allow it to participate in these proceedings as an intervenor. Accordingly, Local 5296 is granted leave to intervene. Should the Application proceed to hearing, the scope of Local 5296’s intervention will be determined by the adjudicator hearing the matter.

ABUSE OF PROCESS

11The applicant filed a grievance based on age discrimination in 2008, which was settled on February 2, 2009. The respondent takes the position that the reference in the Application to the allegations that led to this grievance and the settlement of it amounts to an abuse of process. However, in the applicant’s Reply, he makes it clear that the reference to these early allegations and settlement are solely for the purpose of context to his reprisal allegation. This is proper and, accordingly, the respondent’s request to dismiss those allegations is denied.

DELAY

12The respondent objects to any reference to allegations that pre-date April 21, 2010, the one-year prior to the filing of the Application. Section 34 of the Code states in part:

(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.

13It is not necessary to deal with those allegations that led to the settlement of the grievance in February 2009 for the reasons stated above, namely that the applicant is not relying on them for the purpose of seeking redress, but simply as context for his timely allegations.

14With respect to the remaining allegations, the applicant asserts that they are part of a series of incidents, in which the last incident occurred within the one-year limitation period. Specifically, he alleges that he was subject to a number of comments by his site supervisor at “HP-MCC” that indicated his age was a problem, the last of which occurred on April 28, 2010. He was apparently moved from that worksite in May 2010.

15On the basis of the allegations set out in the Application, it would appear that the remarks pre-dating the one-year time limit were part of a series of incidents, the last of which is timely. Moreover, even if the applicant were unable to rely on these allegations for the purpose of seeking redress, these allegations could be evidence on which it might be possible to infer the reason for the applicant’s removal from that work site (which constitutes a distinct allegation of age discrimination and which is within the one-year timeframe).

16The respondent’s request to dismiss those allegations for delay is, therefore, denied.

ORDER

17In summary, I have made the following orders:

a. Local 5296’s request to intervene is granted. The adjudicator assigned to hear the matter will determine the scope of that intervention; and

b. The respondent’s request to dismiss portions of the Application on the basis of abuse of process and delay is denied.

18I am not seized of this matter.