Donna Hudson v. Corporation of the City of Kingston, Carl Smith, Damon Wells, Daryl Townsend and Judy Brick, 2013 HRTO 1150

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Hudson

Applicant

-and-

Corporation of the City of Kingston, Carl Smith, Damon Wells, Daryl Townsend and Judy Brick

Respondents

-and-

CUPE Local 109

Intervenor

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: July 2, 2013

Citation: 2013 HRTO 1150

Indexed as: Hudson v. Kingston (City)

APPEARANCES

Donna Hudson, Applicant

John Zuber, Counsel

Corporation of the City of Kingston, Carl Smith, Damon Wells, Daryl Townsend and Judy Brick, Respondents

Chris Edwards, Counsel

CUPE, Local 109, Intervenor

Peggy Smith, 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”). The purpose of this Interim Decision is to confirm rulings and directions provided during a teleconference hearing, specifically addressing the union’s intervention request and providing timelines for filing of witness statements and additional documents in advance of the next preliminary hearing date of August 2, 2013, which will be held in person in Kingston.

2Pursuant to an Interim Decision dated May 4, 2011 (2011 HRTO 873), the Application was deferred pending the outcome of a workplace grievance arbitration process. That process concluded with a decision of Arbitrator Elaine Newman, released on August 11, 2011.

3On July 11, 2012, a Form 10 was filed seeking reactivation of the deferred Application. In separate correspondence, the applicant has alleged that the reason for filing the Form 10 seeking reactivation well past the 60 days provided for in Rule 14 of the Tribunal’s Rules of Procedure and outlined in paragraph 8 of the Interim Decision granting the deferral (2011 HRTO 873), is that she believed that the union and counsel for the union would “be assisting with the Human Rights Complaint”.

4In a Form 11 filed on July 12, 2012, the respondents oppose reactivation. They also argue that if the request to reactivate is granted, the Application should be dismissed pursuant to section 45.1 as the substance of the matters before the Tribunal have been appropriately dealt with in another proceeding.

5Since then, the Tribunal has received a Request to Amend the Application from the applicant, opposed by the respondent, on a number of grounds including delay, and a request by the union to intervene, that is opposed by the applicant and to which the respondents agree.

6The matter was set down for a preliminary hearing by teleconference on June 27, 2013.

Union’s Request to Intervene

7During the teleconference hearing, I heard from the parties on the question of the union’s request to intervene and ruled orally that the union’s request was granted.

8The Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 that:

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.

9The applicant suggests that this situation is distinguishable from others in which the union has been granted intervenor status in that the applicant and the union disagree about the content of discussions that took place while the grievance relating to the applicant’s termination was being advanced to arbitration by her union and during the course of that arbitration proceeding.

10In my view, this is an insufficient basis for me to depart from the Tribunal’s usual practice. I am satisfied that the union has the requisite interest in these proceedings.

Evidence Relating to Request to Reactivate

11During the teleconference, I also indicated that evidence would need to be heard in order for me to rule on the issue of whether to exercise my discretion to grant the applicant’s late request to reactivate

12In some of the written materials submitted, the applicant suggests that the union should be barred from providing an account of its understanding of discussions relating to whether the union had agreed to take certain steps to advance the applicant’s human rights Application. The basis of this position appears to be that the applicant believes that those discussions are protected by solicitor client privilege.

13The union points out that in the present situation, solicitor client privilege would attach to communications between counsel for the union and the union, rather than the applicant in these proceedings. While the union agrees that the doctrine of “common interest” would apply to discussions between the grievor and the union or between the grievor, the union and counsel for the union, by raising the matters herself in the context of these proceedings, the applicant cannot claim that the doctrine of privilege continues to apply as she has, in effect, waived that right.

14The applicant has raised the issue of what she understood to have been said during particular meetings concerning her human rights Application and its reactivation following the arbitration. As the union disputes her view of interactions involving her and other members of her union, it is necessary for me to hear from others in attendance at the specific meeting(s) in question as to their recollection of the same events.

15Given that this is the only explanation offered by the applicant for an extensive delay in seeking to reactivate her application, I ruled that it would be necessary for me to hear evidence on this point. To that end, during the teleconference, I directed that the parties file witness statements on the following schedule:

The applicant will file detailed witness statement(s) attaching any documents she relies upon, in unredacted form, no later than 3 weeks in advance of the resumption date of August 2, 2013.

The union will file detailed witness statements, attaching any documents it intends to rely upon, no later than 2 weeks in advance of the hearing date of August 2, 2013.

The respondents may also file witness statements and documents no later than 2 weeks in advance of the August 2, 2013 hearing date.

16At the in person preliminary hearing on August 2, 2013, the issues of reactivation, dismissal pursuant to 45.1, request to amend the Application and the related issue of delay in seeking to amend will be addressed.