HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Anthony Portelli
Applicant
-and-
Communications, Energy and Paperworkers Union of Canada Local 1646, Rick Moriarity, Jason Leavers and Fernando Jimenez
Respondents
-and-
Kruger Inc.
Intervenor
DECISION
Adjudicator: Paul Aterman
Indexed as: Portelli v. Communications, Energy and Paperworkers Union of Canada, Local 1646
WRITTEN SUBMISSIONS
Anthony Portelli, Applicant
Linda Kolyn, Counsel
Communications,Energy and Paperworkers Union of Canada Local 1646, Rick Moriarity, Jason Leavers and Fernando Jimenez, Respondents
Joe Herbert, Counsel
Kruger Inc., Intervenor
Daniel McDonald, Counsel
Introduction
1This Decision deals with whether and on what terms the applicant may withdraw his Application. The reasons below explain why I allow his Request to withdraw without conditions.
2The applicant works for the intervenor, a company that makes cardboard packaging. He alleges that he was discriminated against by the intervenor on grounds of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). He maintains that he was the subject of excessive discipline and harassment related to his illness. He alleges that the company publicised to co-workers the fact that he had a workplace injury and that this injury reduced the premium the company would pay out to its workers for minimising workplace accidents. The applicant claims that this made him the target of harassment by co-workers. These allegations form the basis of another Application (2013-14593-I) that is pending before the Tribunal. The intervenor and its human resources manager are named as the respondents in that Application.
3In the current Application he alleges that his union and the personal respondents, who are union officials, failed to represent him properly in his conflict with the intervenor and its human resources manager. He maintains that this also amounts to discrimination on the basis of disability.
4In a Case Assessment Direction dated June 27, 2013 the Tribunal directed that a summary hearing would be held to determine whether the allegations in the current Application have any reasonable prospect of success. The Tribunal noted that it has held that it is not discrimination for a union or association to decide not to file or pursue a human rights grievance, unless the reason for doing so was based on one of the grounds in the Code.
5On July 30, 2013 the intervenor filed a Request to intervene in this Application and a Request to consolidate this Application with the pending Application in 2013-14593-I.
6On September 5, 2013 the applicant filed a Request to withdraw this Application.
7The intervenor opposes the Request to withdraw. It argues that, by filing two Applications that have a substantial factual overlap against two separate respondents, and then electing to only pursue a remedy against one respondent the applicant is engaging in an abuse of process. It maintains that if either or both Applications proceed to hearing, the same witnesses will have to be called from the company and the union. In the alternative, the intervenor argues that if the Request to withdraw is granted it should be granted subject to conditions. The condition it suggests is that the applicant not be permitted to proceed in 2013-14593-I with any allegations against the intervenor or the personal respondent in that Application that are raised in the current Application.
8The respondents oppose the intervenor’s position. They argue that the intervenor has not explained how it would be an abuse of process to allow the withdrawal, particularly in light of the fact that the Tribunal has identified the Application as one which may not have a reasonable prospect of success. They say it would be pointless to oblige the applicant to proceed with an Application that he has indicated he no longer wishes to pursue.
9For the purposes of dealing with the applicant’s Request to withdraw, I find it appropriate to allow the applicant’s employer to intervene in this Application.
10However, on the merits of the applicant’s Request to withdraw I agree with the respondents. The intervenor asserts that the purported withdrawal is an abuse of process but has not explained how that is so. Its resources are not engaged by the applicant’s filing and subsequent withdrawal of an Application that names the union and some of its officers as respondents. Similarly, the impact on the Tribunal’s allocation of resources is not significant, as the current Application is in its early stages.
11The intervenor has also not explained why any conditions should be attached to the withdrawal of this Application. If the intervenor believes that as part of its defense to 2013-14593-I it needs to introduce evidence from the union or its officials, the mechanisms exist under the Tribunal’s Rules of Procedure to enable it to do so.
order
12The Request of Kruger Inc. to intervene in this Application is granted.
13The applicant’s Request to withdraw this Application is also granted. The Tribunal will close its file.
Dated at Toronto, this 20th day of September, 2013.
“Signed By”
Paul Aterman
Vice-chair