HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bu Xing Sui
Applicant
-and-
Delta Chelsea Hotel and John Puopolo
Respondents
-and-
UNITE HERE, Local 75
Intervenor
INTERIM DECISION
Adjudicator: Jay Sengupta
Indexed as: Sui v. Delta Chelsea Hotel
WRITTEN SUBMISSIONS
Bu Xing Sui, Applicant
Self-represented
Delta Chelsea Hotel and John Puopolo, Respondents
Donna D’Andrea, Counsel
UNITE HERE, Local 75, Intervenor
Jorge Hurtado, 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 disability.
2The purpose of this Interim Decision is to address two issues raised by the Tribunal and by the parties: whether the Application should be deferred pending the resolution of three grievance proceedings currently underway and whether the union, UNITE HERE, Local 75, should be added as a respondent, as the respondent employers seeks, or whether it should be granted intervenor status.
Deferral
3On January 4, 2013, a Notice of Intent to Defer this Application pending completion of another proceeding was delivered to the parties. The Notice provided the parties an opportunity to file written submissions on the deferral issue within 30 days.
4The applicant has sent in three sets of submissions opposing deferral. She argues that the outstanding grievance proceedings have not been dealt with by the respondent employer or the union and she is concerned about an impending sale of the respondent business and how such a transaction would affect her rights. The respondents and the union both support deferral and argue that there are three active grievances involving the applicant that deal with the same facts and issues raised by her in the Application. The union has also provided the Tribunal with correspondence between it and the applicant in which it seeks further input from her to assist in proceeding with the grievances.
5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).
6The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same legal or factual issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.
7In this case, it is apparent that there is substantial overlap between the facts and issues covered by the Application and those referred to in the outstanding grievances. I am satisfied that the concerns the applicant raises about the issues she is having with her union with respect to her grievances do not justify a departure from the Tribunal’s normal approach.
8The Application will therefore be deferred pending the completion of the grievance processes. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance processes.
Status of Union in these Proceedings
9On February 1, 2013, in addition to providing submissions on the deferral issue, the respondents filed a Form 10, Request for Order during Proceedings seeking to add the union as a respondent to this Application, or in the alternative, seeking to have the union added as an intervenor.
10The union, filed its submissions on February 14, 2013 and on February 15, 2013, filed a Form 5, Request to Intervene.
11Although the applicant filed additional submissions on the deferral issue (see above) on February 15, 2013 and February 20, 2013, she did not make any submissions on the respondents’ RFOP or the union’s request to intervene.
12The Tribunal can add parties to an Application in appropriate circumstances. In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal held that it should consider the following three questions when determining a request to add a respondent:
Are there allegations made that could support a finding that the proposed respondent violated the Code?
If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
Would it be fair, in all the circumstances, to add the proposed respondent?
13The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. The second stage clearly does not apply in this case. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the application or response, and prejudice to the other parties.
14In the present case, the respondents suggests that the following passage contained in the Application supports their request:
As mentioned above, the hotel management have decided to “hold a response” until I return to active duty. I feel management purposely put me in a bad situation.
They know my doctors placed me on sick leave due to high level of anxiety and stress I suffered at work. They purposely ignored and went against my doctors recommendations (to have my issues resolved so that I can recover and improve my health).
They know that if they don’t address the issues I will have a difficult time to recover and thereby continue to be sidelined from work. They are now disrespecting my doctors and violating the Human Rights Code regarding my mental disability.
My union also continues to ignore me. I have lost my income and my health and am now forced to bring these issues to the Human Rights Tribunal and request your help.
15The respondents argue that the factors outlined in the Smyth decision favour adding the union as a respondent because the above passage satisfies the first question to be posed in that it indicates that there are allegations that if found to be true would support a finding of a violation of the Code by the proposed respondent.
16In my view, there is nothing in the cited passage that rises to that standard. At most, the applicant is alleging that the union “continues to ignore (her)”, and while that may be grounds for an application concerning a breach of the duty of fair representation under s. 74 of the Labour Relations Act, S.O. 1995, c. 1, Sched. A, as amended, there are no allegations made that could support a finding that the proposed respondent violated the Code. In these circumstances, I need not consider the other factors cited in Smyth, above.
17Accordingly, the respondents’ request that the union be added as a respondent is denied. Their alternative request, supported by the union’s Form 5, is granted for the following reasons.
18Rule 11.1 of the Tribunal’s Rules of Procedure (“Rules”) 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. The Tribunal will determine the extent to which an intervenor will be permitted to participate in a proceeding.
19The Tribunal in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 at para. 13, has stated:
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.
20The union is the bargaining agent in the workplace in question. The applicant is represented by the union as her bargaining agent. I see no reason to depart from the Tribunal’s established practice as stated in Boyce, above, to grant intervenor status when the applicant is a member of a bargaining unit represented by the union.
21The nature and extent of the union’s participation will be addressed by the hearing adjudicator in the event that the matter is reactivated following the conclusion of the grievance proceedings and proceeds to a hearing.
ORDER
22The Application is deferred pending the conclusion of the three active grievance proceedings. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance processes.
23The respondents’ request to add the union as a party is denied.
24The union’s request to intervene is granted. The nature and extent of the union’s participation will be addressed by the hearing adjudicator in the event that the matter is reactivated following the conclusion of the grievance proceedings and proceeds to a hearing.
Dated at Toronto, this 14th day of June, 2013.
”signed by”
Jay Sengupta
Vice-chair