Wayne Talos v. Grand Erie District School Board, 2014 HRTO 1639

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wayne Talos

Applicant

-and-

Grand Erie District School Board

Respondent

-and-

Ontario Human Rights Commission, Ontario Confederation of University Faculty Associations and the Attorney General of Ontario

Intervenors

INTERIM DECISION

Adjudicator: Yola Grant

Date: November 7, 2014

Citation: 2014 HRTO 1639

Indexed as: Talos v. Grand Erie District School Board

WRITTEN SUBMISSIONS

Wayne Talos, Applicant

James M. Melnick, Counsel

Grand Erie District School Board, Respondent

Richelle Pollard, Counsel

Ontario Human Rights Commission, Intervenor

Cathy Pike, Counsel

Attorney General of Ontario, Intervenor

Robert Charney, Counsel

Ontario Secondary School Teachers Federation, Affected Party

Heather Alden, Counsel

Ontario Confederation of University Faculty Associations, Intervenor

Emma Phillips, Counsel

1The Application alleges that the respondent Grand Erie District School Board (GEDSB) breached s. 5(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on the basis of age when the applicant turned 65 because his health benefits ended. The Tribunal's Interim Decision 2013 HRTO 1949, issued on November 26, 2013, found that s. 25(2.1) of the Code is a complete defence to that allegation and there was no reasonable prospect of success with respect to it unless s. 25(2.1) is found to be contrary to the Canadian Charter of Rights and Freedoms (the "Charter").

2The Application continues in the Tribunal's normal hearing process with respect to the issue of whether or not s. 25(2.1) of the Code contravenes the Charter.

3The constitutional question has prompted intervention by the Attorney General of Ontario (AG) and the Ontario Human Rights Commission (OHRC).

4By CAD dated September 25, 2014, the OHRC and AG were confirmed as intervenors with full party status. The OHRC intervened in this Application as a party as of right with the consent of the applicant pursuant to s. 37(2) of the Code and the Attorney General of Ontario intervened in this Application as a party as of right pursuant to s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

5On September 24, 2014, the Ontario Confederation of University Faculty Associations (OCUFA) sought to intervene by filling a Form 5, Request to Intervene, pursuant to the Tribunal's rules.

6At the prompting of the Tribunal for a response, the Applicant and the intervenor OHRC responded on October 20, 2014 by email in support of the request by OCUFA, stating that "Based upon a review of the materials provided by OCUFA, it is anticipated that its input will prove valuable in assisting the Tribunal to make a determination on this application." The Respondent GEDSB and the AG, on October 22 and 23 respectively, communicated by email that they took no position on the intervention request.

7This Interim Decision addresses OCUFA's request to intervene.

ANALYSIS

8The Tribunal has set out the criteria for determining Requests to Intervene in a number of its decisions, including in Carasco v. University of Windsor, 2011 HRTO 630, Mercier v. Queen's University, 2012 HRTO 1737 and Rizza v. Windsor (City), 2014 HRTO 570. The following extract from Mercier suffices:

Requests to intervene in matters before this Tribunal are governed by Rule 11. With respect to persons or organizations not the Ontario Human Rights Commission, the following portions of Rule 11 apply:

11.1 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 hearing.

Intervention by a Person or Organization other than the Commission

11.2 A request to intervene by a person or organization, other than a request by the Commission, must be made in Form 5, Request to intervene, and must be delivered to all parties and any affected persons or organizations identified in the Application or the Response and filed with the Tribunal.

11.3 A Request to Intervene must include an answer to each question in Form 5 and must:

a) describe the issue(s) that the person or organization wants to address;

b) explain the proposed intervenor's interest in the issue(s) and its expertise, if any, regarding the issue(s);

c) set out the proposed intervenor's position, if any, on each of the issues raised in the Application and Response; and

d) set out all the material facts upon which the proposed intervenor will rely.

11.4 Where a party wishes to respond to a Request to Intervene, the response must be in Form 11, Response to Request, and must be filed with the Tribunal no later than 21 days after the Request to Intervene was delivered.

11.5 A copy of the Response to Request under Rule 11.4, if any, must be delivered to the proposed intervenor, all other parties and any identified or affected persons or organizations and filed with the Tribunal.

9In D.R. v. Upper Grand District School Board, 2011 HRTO 1187 ("Upper Grand District School Board") at paragraph 12, the Tribunal stated:

In accordance with Rule 11 of the Tribunal's Rules of Procedure, the Tribunal may allow a person or organization to intervene in any case at any time on such terms as the Tribunal may determine. Tribunal jurisprudence has articulated a number of factors for consideration in assessing a request for intervention:

i. Whether the intervenor has a significant interest or special contribution to make on the issues;

ii. Whether the intervenor is likely to provide assistance to the Tribunal that will not otherwise be provided;

iii. Whether the intervention will unduly delay, disrupt or prejudice the determination of the rights of the parties; and

iv. If intervention is appropriate, are there conditions that should be placed on the intervention.

10The proposed intervenor OCUFA describes itself as a coalition of faculty associations in Ontario with 28 member organizations representing 17,000 university professors, teachers and academic librarians. It further states that its "mandate is to maintain and enhance the quality of higher education in Ontario and to advance the professional and economic interests of teachers, researchers, and librarians".

11With respect to advocacy, "OCUFA works to communicate the views of its member organizations to policy makers and members of the public. To that end, OCUFA has produced dozens of reports and briefings, many of which are available on its website". Furthermore, OCUFA has historically "advocated for the elimination of mandatory retirement in the university sector", it engaged in lobbying efforts and in 2005, it submitted a brief to the Standing Committee on Justice Policy on Bill 211-An Act to Amend the Human Rights Code and certain other Acts to end mandatory retirement.

12OCUFA asserts that it has "substantial interest and expertise with respect to s. 25(2.1) of the Code and more generally with respect to the interests and rights of faculty who choose to work past the age of 65." It has monitored the impact of this section of the Code on its own constituents and notes that with the prohibition of mandatory retirement in 2005, the proportion of university faculty working past age 65 has grown from 1.7% to 8.9% (207 to 1,206 individuals). OCUFA further asserts that the impact of s. 25(2.1) "is having a significant and worsening impact" on its constituents.

DECISION

13The issue to be determined is whether OCUFA has an interest in and a capacity to make a meaningful contribution to the hearing of this Application that will assist the Tribunal in determining the constitutional issue. I am satisfied that it does.

14This case involves important issues of Code interpretation, and could have consequences for universities, colleges and educational institutions across Ontario. OCUFA will likely provide assistance to the Tribunal that may not otherwise be provided, as the applicant, acting singly, has limited resources. The Applicant has thus far not garnered the support of his union, OSSTF, to assist in marshalling this Application. I am satisfied that OCUFA has a significant interest in these issues given its membership and that it will make a special contribution to this case as a result of its longstanding involvement as an advocate on similar issues. OCUFA proposes to address whether s. 25(2.1) of the Code breaches s. 15(1) of the Charter, and whether such a breach is justified by s. 1 of the Charter.

15OCUFA has committed to coordinate its efforts with those of the OHRC to ensure that there is no duplication. In my view, OCUFA's intervention as a party will not unduly delay the proceedings or prejudice the parties, two of whom have consented and the other two of whom have taken no position on the intervention.

ORDERS

16All documents that the applicant and respondent deliver to one another shall also be delivered to the OHRC, the Attorney General and OCUFA as intervening parties to the Application. If OCUFA wishes to introduce evidence or witnesses at the hearing it shall file with the Tribunal and deliver to the applicant and the respondent a list of documents to be relied on, copies of those documents, and witness statements by a date to be determined at the case management conference call.

17All parties shall provide to OCUFA a copy of their respective Application or Response, any statement of additional facts, and any disclosure already made pursuant to the Rules. The parties also shall ensure that OCUFA receives these materials by November 28, 2014.

18OCUFA is entitled to adduce expert evidence in coordination with the OHRC.

19The style of cause shall be amended to reflect the inclusion of OCUFA, OHRC and the Attorney General as intervenors in this Application.

20The determination of the addition of OSSTF, the applicant's union, as a respondent has been deferred pending the outcome of the constitutional question pursuant to the CAD dated September 25, 2014. OSSTF is not entitled to continue to receive copies of documents exchanged between the parties in connection with the constitutional question.

21Given the parties' failure to communicate a consensus regarding production dates by October 17, 2014 as directed by the CAD dated September 25, 2014, the Tribunal will immediately:

(a) schedule a conference call with all parties to determine a plan for the exchange of documents including the respondent's deadline for productions pursuant to Rules 16.2, 16.3, 17.1, and 17.2; and

(b) canvass the parties and intervenors for hearing dates and will schedule four (4) days initially.

22For the purpose of hearing evidence and being expeditious, viva voce evidence will be limited. The Tribunal directs that:

(a) all parties' evidence be introduced by way of affidavits and that expert(s)' reports be filed in advance of the scheduled hearing dates in accordance with the Rules, unless otherwise directed by the Tribunal;

(b) the parties conduct a brief examination-in-chief of their witnesses; and

(c) full cross-examination be conducted before the Tribunal.