Lee v. Kawartha Pine Ridge District School Board, 2013 HRTO 52

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Lee Applicant

-and-

Kawartha Pine Ridge District School Board Respondent

-and-

Canadian Union of Public Employees Intervenor

INTERIM DECISION

Adjudicator: Mark Hart Date: January 10, 2013 Citation: 2013 HRTO 52 Indexed as: Lee v. Kawartha Pine Ridge District School Board

WRITTEN SUBMISSIONS

Robert Lee, Applicant Self-represented

Canadian Union of Public Employees, Intervenor Gavin Leeb, Legal & Legislative Representative

1This Interim Decision is written to address the Request to Intervene dated November 30, 2012 and filed by the Canadian Union of Public Employees (“CUPE”). I also will briefly address certain e-mail correspondence received from the applicant raising documentary production issues.

2CUPE originally was named as a respondent to this Application. By Case Assessment Direction dated January 5, 2012, the Tribunal directed that a summary hearing be held to determine whether the applicant had any reasonable prospect of success in proving that CUPE’s actions were based on a prohibited ground. A teleconference hearing was scheduled for April 20, 2012 to address this issue. The applicant requested an adjournment of the hearing for personal reasons, which was denied (2012 HRTO 682). When the applicant nonetheless failed to attend the summary hearing on April 20, 2012, his allegations against CUPE were dismissed as abandoned (2012 HRTO 1228).

3CUPE seeks leave to intervene in this matter in order to address allegations of misconduct raised by the applicant against various CUPE representatives. At all material times, the applicant was a member of CUPE.

4This Tribunal has recognized numerous times that a union or employee association that seeks intervenor status in a human rights proceeding where one of its members is the applicant will generally be afforded this right: see Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131; Junejo v. Peel (Regional Municipality), 2009 HRTO 998; Marc-Ali v. Graham, 2010 HRTO 1321.

5The applicant objects to CUPE being granted intervenor status on the basis that this Tribunal ignored his written explanation as to why CUPE needed to be held accountable in this proceeding and dismissed his allegations against CUPE because he was not available to attend the summary hearing. With respect, that is not the issue before me. The issue of whether there was a reasonable prospect that the applicant could prove that his rights under the Code were violated by CUPE was the matter to be determined at the summary hearing. This Tribunal found that the applicant had abandoned his allegations as against CUPE because he failed to attend the summary hearing without reasonable excuse. That is an entirely different issue than whether CUPE should be granted intervenor status in this proceeding in order to address matters that affect its members or representatives or its interests under the collective agreement.

6The applicant further has requested that, if CUPE is to be granted intervenor status, then the issue of whether CUPE should be a respondent to this proceeding should be re-visited. I see no reason to do so or to depart from the decision that this Tribunal already has made on this issue.

7The respondent school board did not file a response to CUPE’s request to intervene.

8On the basis of the Tribunal’s case law, I grant CUPE intervenor status in this proceeding, with the right to participate in the hearing in relation to matters that affect its members or representatives or its interests under the collective agreement. Any correspondence sent or materials served by the parties shall also be sent to or served upon CUPE. Within 21 days of the date of this Decision, CUPE shall make disclosure to the other parties of all documents in its possession that are arguably relevant to the matters at issue in this proceeding. Further, by no later than April 1, 2013, CUPE shall comply with its pre-hearing obligations under Rules 16 and 17 as described in the Notice of Hearing dated November 20, 2012.

9Finally, the Tribunal’s records indicate that the respondent school board made disclosure of documents to the other parties on December 11, 2012. By e-mail correspondence dated December 17, 2012, the applicant has raised certain objections to some of the documents disclosed and has stated that he has not received certain other documents that he believes to be relevant to this proceeding.

10In my Interim Decision in this matter dated September 20, 2012 (2012 HRTO 1792), I stated (at para. 18):

If after receipt of . . . disclosure from the opposing party, a party believes that the disclosure is incomplete, then the first step is to raise the issue with the opposing party, set out specifically what additional documents the party believes should be disclosed and why the party believes they are arguably relevant to an issue in the proceeding, and afford the opposing party a reasonable period of time to respond. If after that there is a dispute between the parties as to what documents should be disclosed, then the party seeking disclosure should at that time file a Request for Order attaching any relevant correspondence exchanged between the parties and specifying the documents that the party seeks to have disclosed and why they are arguably relevant.

11Accordingly, if the applicant believes that there are arguably relevant documents that are in the possession of the respondent school board and that have not been disclosed to him and/or if he wishes to object to documents that have been disclosed, he needs to serve on the respondent and CUPE and file with the Tribunal a Request for Order (Form 10), specifying the documents that he seeks to have disclosed and why they are arguably relevant to the issues in this proceeding and setting out in full the basis for his objection to any documents that have already been disclosed.

ORDER

12By reason of the foregoing, the Tribunal hereby makes the following order:

a. CUPE is hereby granted intervenor status in this proceeding, with the right to participate in the hearing in relation to matters that affect its members or its interests under the collective agreement;

b. Any correspondence sent or materials served by the parties shall also be sent to or served upon CUPE;

c. Within 21 days of the date of this Decision, CUPE shall make disclosure to the other parties of all documents in its possession that are arguably relevant to the matters at issue in this proceeding; and

d. By no later than April 1, 2013, CUPE shall comply with its pre-hearing obligations under Rules 16 and 17 as described in the Notice of Hearing dated November 20, 2012.