Human Rights Tribunal of Ontario
B E T W E E N:
Freda Schugmann
Applicant
-and-
The Corporation of the Municipality of Red Lake
Respondent
-and-
United Steelworkers
Intervener
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Schugmann v. Red Lake (Municipality)
WRITTEN SUBMISSIONS
Freda Schugmann, Applicant
Lori Mishibinijima, Counsel
United Steelworkers, Intervener
Mark Rowlinson, Counsel
1This Interim Decision addresses a Request to Intervene (“the Request”) filed by the United Steelworkers. The applicant is a member of that union. The applicant opposes the union’s Request. The respondent has not responded to the Request.
2The Application alleges that the respondent discriminated against the applicant contrary to the Code when it did not award the applicant a position she applied for. The remedies requested in the Application include being placed in the position.
3The position in question is not part of the bargaining unit. The person who was awarded the position was a member of the bargaining unit.
4The union states that it wishes to intervene because the applicant is currently in the bargaining unit and that the person who was the successful candidate was also in the bargaining unit. The union also notes that the applicant may be relying on arbitration decisions involving the respondent and the union and indicates that it may be able to assist the Tribunal in respect of those submissions. The union indicates that it intends to take no position with respect to the remedy sought by the applicant.
5The applicant opposes the union’s Request. The applicant notes that the union is not taking a position in respect of the remedy the applicant seeks and that since the position in question is not part of the bargaining unit, it is a position that the union has no authority over. The applicant also expresses concern about confidentiality. The applicant indicates that she wishes to keep the matter as confidential as possible, given that she continues to work for the respondent. In addition, the applicant notes that the Tribunal has refused to grant a union intervener status when doing so may expand the scope and complexity of the hearing: Upchurch v. MTI Mechanical Trade Industries, 2010 HRTO 1323.
Conclusions on the union’s Request to Intervene
6When an applicant is a member of a bargaining unit or when the requested remedy may impact on the operation of the collective agreement or affect other members of the bargaining unit, the Tribunal will generally grant a request by a union that it be granted intervener status, subject to limitations on the nature and extent of any intervention that the union may be permitted at the hearing. However, as discussed in Upchurch, such a request will not be automatically granted.
7In Upchurch, there was a related proceeding before the Ontario Labour Relations Board as between the applicant and the union. The Vice-chair concluded that the OLRB proceeding was not relevant to the Application and indicated: “Allowing the Union’s Request could expand the scope and complexity of the hearing and could appear to overlap with ongoing litigation at the Ontario Labour Relations Board.”
8In the present case, there is no similar related proceeding and it does not appear to me that there is any risk that allowing the union to intervene would expand the scope or complexity of the hearing. While the union does not necessarily have a direct interest in the outcome of the hearing, it could be affected if the Tribunal granted the remedy sought by the applicant and placed her in the position as this would presumably mean that the person currently in that position would be displaced and would presumably return to the bargaining unit.
9Since the Application has now moved beyond the mediation stage and is scheduled for a hearing, the applicant’s concerns about confidentiality do not apply to the extent they did when the matter was proceeding to mediation.
10For these reasons, the union’s Request is granted.
Is there another person affected by the Application?
11The Application appears to potentially affect the person who was the successful candidate for the position in question. This arises because the applicant seeks to have that person removed from the position so that the applicant can be placed in it.
12Within seven days of this Case Assessment Direction, the parties and the intervener may make submissions about whether the successful candidate for the position should be given notice of the Application. The respondent is also required to provide contact information for the person.
13Dated at Toronto, this 16th day of January, 2013.
“Signed by”
Brian Cook
Vice-chair