McEnroe v. Toronto Community Housing Corporation, 2014 HRTO 1275

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melissa McEnroe

Applicant

-and-

Toronto Community Housing Corporation

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: August 28, 2014

Citation: 2014 HRTO 1275

Indexed as: McEnroe v. Toronto Community Housing Corporation

1This Interim Decision addresses the applicant’s request to add the Ontario Ministry of Labour as a party to the Application.

BACKGROUND

2By Application filed on January 7, 2014, the applicant alleged that the respondent discriminated against her because of sex and family status and that it reprised against her contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3The applicant raised the following allegations in her Application: that the respondent discriminated against her through the differential application of its policy regarding lieu time and by denying salary top-up benefits during her pregnancy/parental leave. In her Application, the applicant also alleged that the respondent discriminated against her by denying her request for parental leave after she had returned to work early from her pregnancy leave. In denying this request, the respondent relied upon s. 48(3) of the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”). That section requires an employee who has taken pregnancy leave to begin her parental leave when her pregnancy leave ends unless the child has not yet come into her custody, care and control for the first time.

4By Notice of Hearing dated July 4, 2014, the Tribunal advised that the hearing of the Application was scheduled for November 18 and 19, 2014.

5After filing her Application, the applicant filed a claim with the Ministry of Labour on February 5, 2014. In her claim, the applicant challenged only the respondent’s denial of her parental leave. By decision rendered on June 2, 2014, an Employment Standards Officer denied the applicant’s claim on the basis that the respondent’s denial of her request for parental leave was in compliance with s. 48(3) of the ESA. On June 30, 2014, the applicant filed an application to the Ontario Labour Relations Board (“OLRB”) requesting a review of the Employment Standards Officer’s decision. In her application to the OLRB, the applicant submitted that s. 48(3) of the ESA violates s. 15 of the Canadian Charter of Rights and Freedoms. The respondent has advised the Tribunal that the OLRB has issued a notice of pre-hearing meeting scheduled for September 11, 2014.

6By Request for Order During Proceedings filed on June 24, 2014, the applicant requested that the Tribunal add the Ministry of Labour as a party to the Application. The applicant submitted that the Ministry of Labour should be added as she intends to claim, as part of her Tribunal Application, that s. 48(3) of the ESA violates the Code.

7Both the respondent and the Ministry of the Attorney General (“Ontario”) opposed the applicant’s request to add the Ministry of Labour or Ontario as a party. In addition, the respondent requested that the Tribunal defer the Application pending the outcome of the applicant’s application to the OLRB.

AUGUST 8, 2014 CAD

8By Case Assessment Direction (“CAD”) dated August 8, 2014, I advised the parties that deferral was not appropriate in light of the fact that the applicant filed her Application with the Tribunal before her ESA claim. I also found that it is more appropriate from an adjudicative resources perspective to have all of the applicant’s allegations dealt with together. As well, the applicant’s stated intention to withdraw her application to the OLRB weighed against deferral as such a withdrawal would avoid any risk of inconsistent findings of fact and law.

9I directed that, if the applicant wished to proceed with her claim that s. 48(3) of the ESA violates the Code before the Tribunal, she had to confirm that she had withdrawn her application to the OLRB. In the CAD, I advised the parties that if the applicant did withdraw her OLRB claim and proceeded with this Application, I would issue an Interim Decision addressing her request to add Ontario as a party.

10By correspondence dated August 22, 2014, the applicant confirmed that she has withdrawn her OLRB claim.

REQUEST TO ADD ONTARIO AS A PARTY

11I note that the applicant requested that the Tribunal add Ontario as a “party” without specifying whether she was requesting that the Tribunal add Ontario as a respondent or intervenor. For the reasons that follow, I do not find it appropriate to add Ontario either as a respondent or intervenor to this Application.

12The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at para. 12 (“Smyth”). In Smyth, the Tribunal set out the following three considerations for deciding whether to add a respondent:

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?

13In my view, it is not appropriate to add Ontario as a party since there are no allegations in the Application that could support a finding that Ontario has violated the Code. However, Ontario would have a right to formal notice of the applicant’s challenge to s. 48(3) of the ESA. By providing submissions in response to the applicant’s request to add it as a party, I am satisfied that Ontario has been provided with formal notice of the applicant’s claim that s. 48(3) of the ESA violates the Code.

14The Tribunal’s Rules of Procedure (“Rules”) do not provide any mechanism for a party to request that an entity be added as an intervenor. The Rules set out a process by which a party can request intervenor status. I do not find it appropriate for the Tribunal to add Ontario as an intervenor in the absence of a request for intervenor status on its part. If Ontario wishes to intervene in this Application, it can file a request to intervene in accordance with the Tribunal’s Rules.

ORDER

15The applicant’s request to add Ontario as a party is denied.

16The Tribunal confirms that the applicant intends to claim at the hearing that s. 48(3) of the ESA violates the Code.

17The parties were required to make the disclosure required under Rules 16.2 and 17 of the Code by October 6, 2014. However, in the circumstances set out above, this deadline is extended to October 31, 2014.

18I am not seized.