Saldanha v. OCAD University, 2013 HRTO 1651

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Errol Saldanha

Applicant

-and-

OCAD University

Respondent

-and-

Ontario College of Art and Design Faculty Association

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: October 2, 2013

Citation: 2013 HRTO 1651

Indexed as: Saldanha v. OCAD University

WRITTEN SUBMISSIONS

Ontario College of Art and Design Faculty Association, Intervenor

Emma Phillips, Counsel

1The applicant filed this Application on June 28, 2013, under Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to employment on the basis of race, colour, ancestry, place of origin and ethnic origin.

2On August 26, 2013, the Ontario College of Art and Design Faculty Association (“Faculty Association”) filed a Request to Intervene. The Faculty Association seeks to intervene in this Application because it is concerned that the allegations address a number of matters that may impact its members and provisions of the Memorandum of Agreement it has entered into with the respondent employer.

3The respondent filed a Response on September 16, 2013, denying the allegations. The respondent requests the Application be deferred and also asserts that the many of the allegations are untimely. The respondent indicates that it is amenable to participating in mediation.

4Neither applicant nor respondent filed submissions in response to the Faculty Association’s request to intervene.

REQUEST TO INTERVENE

5The Faculty Association states that it is the bargaining agent for the applicant and other individuals identified in the Application narrative.

6As the Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131:

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.

7In accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by a union or association, the Faculty Association’s request to intervene is granted. The scope of the Faculty Association’s participation in any mediation and/or hearing will be determined by the mediator and/or adjudicator overseeing this matter.

DEFERRAL

8The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

9In response to Question 8 in Form 2, the respondent indicated that it is requesting that the Application be deferred until another proceeding is completed; however, the respondent did not indicate what proceeding is ongoing. Although the respondent did not specify the other proceeding, based on the parties’ materials it appears that the respondent is requesting that the Tribunal defer the Application because an internal workplace complaint is under investigation.

10The Tribunal’s jurisprudence has generally held that it does not defer to an internal complaints process. An internal investigation is not a legal proceeding which could lead to potentially inconsistent findings on fact and law. The respondent’s request to defer is, therefore, denied.

DIRECTIONS

11The Tribunal orders as follows:

i. The Faculty Association is added as an intervenor to this Application and the style of cause is amended to reflect the same;

ii. Within seven days of the date of this Interim Decision, the applicant is directed to write to the Tribunal, copied to the respondent and the intervenor, confirming whether or not he is interested in mediation; and

iii. If the applicant agrees to mediation, the Registrar will issue a Notice of Mediation. The Tribunal will consider the preliminary issue of untimely allegations following the mediation if no settlement is reached; and

iv. The Tribunal may issue directions or request further submissions, where appropriate.

12I am not seized of this matter.