HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Emily Duke
Applicant
-and-
City of Toronto and Peter Konoplicky
Respondents
-and-
Toronto Professional Fire Fighters’ Association, Local 3888
Intervenor
INTERIM DECISION
Adjudicator: Jennifer Scott
Indexed as: Duke v. Toronto (City)
APPEARANCES
Emily Duke, Applicant
Angela Chaisson, Counsel
City of Toronto and Peter Konoplicky, Respondents
Rebecca Bush and Naomi Calla, Counsel
Toronto Professional Fire Fighters’ Association, Local 3888, Intervenor
Mandy Wojcik, Counsel
Introduction
1This Application is proceeding to a hearing on December 16-18, 2013, on the allegations of sexual harassment, sexual solicitation, reprisal, and discrimination with respect to employment because of sex and sexual orientation. The applicant’s request to amend the Application to add further allegations of discrimination relating to the City of Toronto’s (the “City”) attendance management system was deferred by the Tribunal pursuant to a Case Assessment Direction dated November 21, 2013 (the “CAD”).
2On November 15, 2013, the Toronto Professional Fire Fighters’ Association, Local 3888 (the “Association”), filed a Request to Intervene to address the following issues:
a. The non-monetary and public interest remedies sought by the applicant;
b. Any issues related to the interpretation or application of the Association’s collective agreement with the respondent City of Toronto or the Association’s role as bargaining agent.
3In the Request, the Association takes no position on the merits of the Application. The scope of its participation is limited to the non-monetary and public interest remedies sought by the applicant related to transfers, the Attendance Management Program and the promotional process, and any issues related to the interpretation or application of the collective agreement or the Association’s role as bargaining agent. The Association reserved its right to modify this position as the proceeding unfolded.
4The Association seeks to intervene in the proceeding on the following terms:
a. The Association and counsel for the Association are provided with all materials filed by the parties, including Requests for an Order or Requests to Intervene;
b. The Association and counsel be permitted to be in attendance at any mediation, teleconference, or hearing, including the dates set by the Tribunal in December for the commencement of the matter;
c. Counsel for the Association be allowed to make any submissions with respect to the operation and interpretation of the collective agreement where the collective agreement is at issue.
5The CAD directed the Association to advise whether it was seeking leave to intervene in the original Application or the proposed amended Application. On November 25, 2013, the Association advised the Tribunal that it wanted to intervene in the original Application. It advised the Tribunal that while it takes no position on whether the applicant was sexually harassed and reprised against, it wants to make submissions on the amount of time it has taken the City to investigate the applicant’s complaint. The Association states this issue engages the provisions of the City’s policies, as well as the collective agreement. The Association also wishes to make submissions with respect to remedies in the event the Tribunal finds the Code has been breached as the remedies engage the provisions of the collective agreement.
6The respondents oppose the Association’s proposed intervention because they assert the City’s investigation is outside the scope of the Application. They also oppose the Association’s participation in any mediation.
7The applicant consents to the Association’s proposed intervention.
intervention
8Rule 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.
9The 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.
10The applicant is an employee represented by a 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, particularly in the circumstances of this case where the Association is limiting its participation to providing submissions to the Tribunal. The extent of those submissions will be determined at the hearing based on the evidence that is admitted.
mediatation/adjudication
11The Tribunal offered the parties mediation/adjudication in the CAD. It is uncertain at this time whether the parties agree to enter into this process. If they do, the Association can participate in the mediation as remedies may be sought that involve the collective agreement. It is the Tribunal’s usual practice to include unions in the mediation process even where intervention status has not been determined. In this case, intervention status has been granted. There is no reason to depart from the Tribunal’s usual practice to permit union participation in the mediation should the applicant and the respondents agree to mediation/adjudication on December 16, 2013.
witnesses
12On December 3, 2013, counsel for the respondents wrote to the Tribunal to object to a number of the applicant’s proposed witnesses on the basis that their evidence does not relate to the issues in the Application.
13The Tribunal will address the applicant’s proposed witness list at the hearing, most likely after the applicant’s evidence is concluded. The applicant’s proposed witnesses should not be in attendance on the first day of hearing because the applicant’s evidence will be heard that day and there will be an order excluding witnesses.
order
14The Toronto Professional Fire Fighters’ Association, Local 3888 is granted leave to intervene on the terms requested.
Dated at Toronto, this 10th day of December, 2013.
“Signed by”
Jennifer Scott
Vice-chair