Abdulahi v. Toys “R” Us (Canada) Ltd., 2013 HRTO 1608

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ikram Abdulahi

Applicant

-and-

Toys “R” Us (Canada) Ltd. and Tony Maniscalco

Respondents

AND B E T W E E N:

Denise Campbell

Applicant

-and-

Toys “R” Us (Canada) Ltd. and Tony Maniscalco

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: September 25, 2013 Citation: 2013 HRTO 1608 Indexed as: Abdulahi v. Toys “R” Us (Canada) Ltd.

WRITTEN SUBMISSIONS

Toys “R” Us (Canada) Ltd. and Tony Maniscalco, Respondents Jennifer Fantini, Counsel

The Staffing Edge and Freedom Staffing Group Inc., Affected Parties Susan Crawford, Counsel

Introduction

1This Interim Decision addresses the respondents’ request to consolidate Applications 2012-12082-I and 2012-12083-I filed by the applicants against the respondents on July 25, 2012. It also addresses the Request to Intervene filed by The Staffing Edge and Freedom Staffing Group Inc.

2Both Applications allege that the applicants were discriminated against because of creed contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). The applicants are co-workers and both identify as Muslim. They both allege that the respondents discriminated against them by denying them appropriate time off to pray.

Consolidation Request

3The respondents request that the Tribunal consolidate the two Applications since the legal and factual issues in them are identical. The respondents also note that all of the witnesses for the two Applications are likely to be identical. The applicants have not responded to the respondents’ request and the time for doing so has now passed.

4Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together.

5In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

a. The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

b. The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

c. Whether there are common issues of fact or law.

6Applying these factors, I find that the two Applications identified above should be consolidated. The two Applications cross-reference one another. They also raise the exact same facts and issues. For these reasons, they should be consolidated and heard together.

Intervention Request

7In their Response, the respondents named Freedom Staffing Group Inc. (“FSG”) as an affected party in these proceedings. FSG is the staffing agency that placed the applicants with the respondents.

8The Staffing Edge Inc. (“TSE”) is a company composed of different staffing agencies which dispatches work to various clients including the corporate respondent. FSG is one of TSE’s staffing agencies. TSE and/or FSG were the employers of the applicants during their placement with the corporate respondent.

9Both TSE and FSG have sought to intervene in the Application. Neither the applicant nor the respondents filed submissions in relation to their Request.

10Requests to intervene in matters before this Tribunal are governed by Rule 11. With respect to organizations that are not the Ontario Human Rights Commission, the following portions of Rule 11 apply:

11.1 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.

11.3 A Request to Intervene must include an answer to each question in Form 5 and must:

a) describe the issue(s) that the person or organization wants to address;

b) explain the proposed intervenor’s interest in the issue(s) and its expertise, if any, regarding the issue(s);

c) set out the proposed intervenor’s position, if any, on each of the issues raised in the Application and the Response; and

d) set out all the material facts upon which the proposed intervenor will rely.

11In determining intervention requests, the Tribunal has applied the criteria set out by the Board of Inquiry (the predecessor to the Tribunal) at para. 19 of Jeppersen v. Ancaster (Town), [2001] O.H.R.B.I.D. No. 1 (“Jeppersen”):

In my view, the following considerations, while not exhaustive, inform the decision whether intervention should be granted and, if so, on what terms:

(a) whether the intervention will unduly delay or prejudice the determination of rights of the parties to the proceeding;

(b) whether the applicant has a significant interest in the issue on which intervention is sought;

(c) whether the applicant is likely to provide assistance to the Board that will not otherwise be provided.

12I grant TSE and FSG’s Request to Intervene in the Applications. I am satisfied that, as the entities responsible for dispatching the applicants to work for the corporate respondent, TSE and FSG have a significant interest in this proceeding. I am also satisfied that they would likely provide some assistance to the Tribunal with respect to the facts and context to the applicant’s employment with the corporate respondent. I find it is appropriate to leave the scope of TSE and FSG’s intervention rights to the adjudicator hearing this matter in order to ensure that the intervention does not unduly delay the proceeding or prejudice any other party’s rights.

ORDER

13For the reasons set out above the Tribunal orders:

a. Applications 2012-12082-I and 2012-12083-I are consolidated and will be heard together.

b. TSE and FSG’s Request to Intervene is granted. The scope of their intervention rights shall be determined by the adjudicator hearing the Applications on their merits.

14I am not seized.