Jamal Hassan v. City of Ottawa, 2013 HRTO 963

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jamal Hassan

Applicant

-and-

City of Ottawa

Respondent

-and-

Amalgamated Transit Union, Local 279

Intervenor

Interim Decision

Adjudicator: Ena Chadha

Date: June 3, 2013

Citation: 2013 HRTO 963

Indexed as: Hassan v. Ottawa (City)

WRITTEN SUBMISSIONS

Jamal Hassan, Applicant

Russell MacCrimmon, Counsel

City of Ottawa, Respondent

David Patacairk, Counsel

Amalgamated Transit Unit, Local 279, Intervenor

Samantha Lamb, Counsel

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on February 1, 2013, alleging discrimination with respect to employment on the basis of disability.

2The applicant was employed as a bus driver with OC Transpo, the transit service of the respondent City. As a result of developments relating to the accommodation of his disability, the applicant was placed on the respondent City’s Priority Placement Program. The applicant alleges that the respondent City discriminated against him when it failed to accommodate him in a suitable position.

3On February 26, 2013, the applicant’s union, the Amalgamated Transit Union, Local 270, filed a request to intervene. The union notes that it grieved the applicant’s initial termination from OC Transpo and participated in the settlement that placed the applicant on the respondent City’s Priority Placement Program. The union indicates that it wishes to make submissions on the preliminary issue of the Tribunal’s jurisdiction over a federally regulated workplace.

4The respondent filed a partial Response on March 22, 2013 requesting that the Tribunal dismiss the Application for lack of jurisdiction. The respondent alleges that, as a federally-regulated enterprise, OC Transpo does not fall under provincial human rights legislation in Ontario.

5The applicant filed a Request for an Order During Proceedings asking that the Tribunal require the respondent to file a full Response and provide particulars and documentation supporting its claim that the applicant’s employment was within exclusive federal jurisdiction. The applicant indicates that, although it does not dispute that OC Transpo is within federal jurisdiction, the applicant was reinstated by the respondent City and, therefore, within the Tribunal’s jurisdiction.

6The respondent City denies that it has any records related to the applicant which are relevant to the issue of jurisdiction.

REQUEST TO INTERVENE

7Rule 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.

8The 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.

9The applicant was represented by the union as his 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 Application where it appears that the grievance settlement may be an issue in the case.

JURISDICTION

10In summary, the respondent has asked that the Application be dismissed on the basis the Application is outside the Tribunal’s provincial jurisdiction because the applicant was an employee of OC Transpo. The applicant requests that respondent be required to file a fulsome Response and provide further particulars and documentation supporting its contention of exclusive federal jurisdiction. The union wishes to make submissions addressing the applicant’s employment with a federally regulated workplace.

11Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an Application within its jurisdiction without affording the parties an opportunity to make oral submissions. Given that there is a question regarding whether or not the applicant’s employment and the scope of the allegations relate to a federally regulated workplace, the Tribunal determines that it will be efficient and fair to receive oral submissions regarding all preliminary issues together by way of conference call hearing. As such, the Tribunal directs the following:

(i) The applicant’s union is granted intervenor status and the style of cause is amended to reflect the same;

(ii) A half day teleconference hearing will be scheduled to hear the parties’ submissions with respect to all preliminary issues, specifically the request to dismiss because of alleged federal jurisdiction and the request for production;

(iii) The parties and intervenor are directed to file with the Tribunal and copied to each other, at least 14 days in advance of the teleconference hearing, written submissions, any supporting documents, and legal authorities with respect to the preliminary issues;

(iv) The parties and intervenor are directed to provide the Tribunal and copy each other, at least 14 days in advance of the hearing, written clarification regarding the status of the Canadian Human Rights Commission complaint; and

(v) The Tribunal will consider the parties’ submissions and may issue further directions with respect to any issues and/or may schedule future steps accordingly.

12I am not seized of this matter.