HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Pamela Barkwill
Applicant
-and-
Niagara Health System
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Barkwill v. Niagara Health System
WRITTEN SUBMISSIONS
Pamela Barkwill, Applicant
Self-represented
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.
2This Interim Decision deals with a Request for an Order during Proceedings (the “RFOP”) filed by the applicant in which she seeks to add the Service Employees International Union (“SEIU”) as a respondent.
3SEIU has not filed a response to the RFOP.
DECISION
4The Tribunal, on its own initiative, or at the request of a party, may add parties to the Application if it appears that they may have infringed a right under the Code. The Tribunal may add a party in order to provide for “fair, just and expeditious” resolution of an application, under s. 1.7 of the Tribunal’s Rules of Procedure. As noted in Marchese v. Fortinos, 2009 HRTO 25, the Tribunal will not add a proposed party in a perfunctory manner or as a matter of formality. Rather, it will decide whether it is appropriate to do so based on the parties’ materials and arguments. The Tribunal states in Smyth v. Toronto Police Services Board, 2009 HRTO 1513 at para. 12:
(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?
(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
(3) Would it be fair, in all the circumstances, to add the proposed respondent?
5In this case the applicant seeks to add the SEIU as a respondent. In Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996, the Tribunal stated as follows at para. 33:
Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors. See also Arias