Ryan v. College of Nurses of Ontario, 2014 HRTO 323

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kaitlin Ryan

Applicant

-and-

College of Nurses of Ontario and Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care and the Minister of the Attorney General

Respondents

-and-

Ontario Nurses Association

Intervenor

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: March 11, 2014

Citation: 2014 HRTO 323

Indexed as: Ryan v. College of Nurses of Ontario

APPEARANCES

Kaitlin Ryan, Applicant

Danielle Bisnar, Counsel

College of Nurses of Ontario, Respondent

Raj Anand and Katharine Montpetit, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Minister of of Health and Long-Term Care and the Minister of the Attorney General, Respondent

Taylor Ransom, Counsel

Ontario Nurses Association

Kate Hughes, Counsel

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 goods, service and facilities and membership in a vocational association because of disability. This Interim Decision addresses a Request to Intervene (the “Request”) filed by the Ontario Nurses Association (“ONA”).

Background

2This Application concerns section 5.1 (2) [formerly section 9 (6)] of O. Reg 275/94 of the Nursing Act, 1991, S.O. 1991, c. 32 ("Regulation 275/94") that creates a temporary class registration for qualified applicants, and the process the College of nurses of Ontario (the "College") administers regarding the registration (i.e., licensing) of nurses. The applicant alleges that the automatic revocation of temporary class registration discriminates in its effect on applicants for registration with disabilities and does not allow for individualized accommodation. The applicant alleges that the College’s registration process imposes burdens upon applicants for registration with disabilities and, again, does not provide for individual accommodation. The respondents denying that either Regulation to 275/94 or the College’s registration process is discriminatory and, in the alternative, assert that the impugned section of the regulation is a bona fide qualification under section 11 of the Code.

The request

3ONA is a trade union representing nurses throughout Ontario, including the hospital in which the applicant work worked. ONA states that it represents registered nurses in matters before the College. ONA submits that the applicant is a member of ONA and was at all times material to her Application and the issues in dispute in this matter, including the remedies the applicant requests have the potential to affect ONA and its members ONA submits that the College did not properly accommodate the applicant during the registration process

4ONA submits that it has an interest in the Application because the issues relating to the registration process may affect many of its members, particularly those with disabilities. The ONA also provides support and legal assistance to its members regarding the College's registration processes. ONA submits that the applicant, who worked in a bargaining unit represented by ONA, lost her employment because of the College's processes and the outcome of this matter may affect other ONA members. ONA also states that it has a significant interest in preventing discrimination against its members. Accordingly, ONA submits it has an interest in the outcome of this Application.

5ONA submits that it is in a position, given its experience in representing nurses, to provide helpful insights into the College's processes and its actual and potential effect on nurses. ONA states that it can also make submissions regarding remedy, if appropriate. ONA submits that the Tribunal will almost always grant a union intervenor status in an application involving a member of one of its bargaining units, citing Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 and Chinian v. Algoma Public Heath, 2014 HRTO 22.

6The applicant filed a Response to a Request for an Order in which she supports ONA's request. The applicant's submissions mirror ONA’s in large measure it is unnecessary to repeat them. The applicant also submits that the benefit of ONA's participation, given its expertise and specialized knowledge, would outweigh any delay that may result from its involvement as an intervenor.

Response to the Request

7Both respondents filed responses setting out their opposition to the request.

8The respondent Her Majesty the Queen in Right of Ontario ("Ontario") submits that ONA did not demonstrate a significant interest in any issues arising in the Application. Ontario submits that ONA has no interest in the specific factual matters underpinning this Application. Ontario also submits that it is unclear how ONA will be affected by this proceeding because ONA made only in general submissions in this regard. Ontario submits that the facts regarding a particular applicant may often be similar to the circumstances of other people, which is to be expected in a challenge to legislation affecting many people. Ontario submits this reality does not give ONA any particular interest in this proceeding. Ontario submits that other nurses may be affected by Regulation 275/94 and may find themselves in similar circumstances as the applicant, but that this would not give them, or ONA, status to intervene as a party.

9Both respondents submit that the circumstances of this Application are distinguishable from applications in which the Tribunal has readily granted intervenor status to trade unions, such as in Boyce, above. The respondents note that the Application does not concern allegations of discrimination with respect to employment and therefore does not engage ONA's interests as a bargaining agent. Rather, the Application alleges discrimination in the College’s registration process, in which ONA plays no part.

10Both respondents also submit that ONA is unlikely to provide assistance to the Tribunal that will not otherwise be provided. Ontario submits that ONA made only general statements regarding the assistance it could provide the Tribunal regarding the College’s processes and its effect on nurses, which Ontario submits is insufficient basis for concluding that ONA is in a position to assist the Tribunal. Both parties also note that the applicant and ONA are represented by the same law firm, Cavalluzzo LLP. The respondents state that therefore that any evidence or submissions ONA proposed could be made available to the applicant and presented by her. The College submits that because the applicant and ONA are represented by the same law firm, they are necessarily allied interest and shall present the same position and perspective on the issues in these proceedings. The College submits that ONA's request reiterates the applicant's legal position and submits that ONA's participation will be duplicative and of no assistance to the Tribunal.

11The College also submits that ONA made general submissions regarding its experience and expertise regarding college proceedings. The College submits that ONA presented no evidence that it has experience related to issues of accommodation or allegations of discrimination regarding the registration process. Consequently, the college submits that ONA has no demonstrated expertise that would assist the Tribunal.

12Ontario submits that ONA's intervention at this stage will cause undue cost, complexities and delay to the proceeding. Ontario submits that granting full participatory rights to ONA will entail additional evidence cross-examination and argument, which will increase the cost to the parties. Ontario submits that the time the Tribunal allotted to the hearing of this matter was based on the assumption that only the applicant and two respondents would participate in the hearing. Ontario submits that in all the circumstances the costs and delays resulting from ONA’s involvement is not warranted in light of the limited assistance it could provide.

Reply Submissions

13ONA also filed submissions in Reply to the respondents’ submissions. The College objected to ONA’s Reply on the basis that the Tribunal’s Rules of Procedure (the “Rules”) do not provide for Reply submissions regarding interlocutory requests. The College also submits that, in any event, most of ONA’s submissions are not proper reply because they supplement ONA’s original Request. The College submits that ONA should have made these submissions earlier, which would have allowed the respondents to respond to them.

14The College is correct that the Tribunal's Rules do not provide for Reply submissions regarding interlocutor requests. Accordingly, I expect that the parties will not file Reply submissions with respect to any future Requests for Orders that may arise in this matter unless the Tribunal requests such submissions or grants leave to file them. Having said that, I have reviewed the ONA's Reply submissions, but they did not alter my disposition of the Request.

Analysis and decision

15Pursuant to Rule 11 of the Tribunal’s Rules of Procedure, the Tribunal may grant intervention status to an organization that complies with the requirements of Rule 11 and will determine the extent to which an intervenor will be permitted to participate in a proceeding. In exercising its discretion, the Tribunal is generally guided by the following non-exhaustive considerations:

(a) whether the intervention will unduly delay or prejudice the determination of rights of the parties to the proceeding;

(b) whether the applicant has a significant interest in the issue on which intervention is sought; and

(c) whether the applicant is likely to provide assistance to the Tribunal that will not otherwise be provided.

See Jeppersen v. Ancaster (Town), [2001] O.H.R.B.I.D. No. 1, and Carasco v. University of Windsor, 2011 HRTO 630.

16The Tribunal usually grants intervenor status to unions in applications where an applicant alleges discrimination with respect to employment under section 5 of the Code, and where the applicant is or was a member of a bargaining unit represented the union and the outcome of the Application may affect rights under a collective agreement. That is not the case in this Application and, while ONA alluded to potential impacts to the bargaining unit in which the applicant was formerly a member, it is difficult to see how the outcome of this Application all have any effect on rights under the collective agreement between ONA and the applicant's former employer. The applicant's and ONA's interests also appear to be very closely aligned, as ONA supports the applicant's position and both are represented by the same law firm. Having said that, I accept that ONA, as an organization that represents nurses, has an institutional interest in this Application and therefore should be granted intervenor status.

17I am not satisfied, however, that ONA has demonstrated that it can provide assistance to the Tribunal that would not be otherwise available. First, it is not clear to me that evidence of the experiences of other nurses in the registration process or of the perspective of ONA personnel regarding this process will be helpful, i.e., relevant, in deciding this Application, which, of course, arises out of its own particular facts. Second, and in any event, neither ONA nor the applicant has indicated that the applicant could not present the evidence and argument ONA proposes, particularly given that they are represented by the same law firm. On the other hand, allowing ONA to examine and cross examine will undoubtedly lengthen the hearing. I am also concerned, given ONA’s apparent alignment of interest with the applicant, that ONA’s participation will be repetitious.

18In my view, granting ONA the right to intervene in the broad manner it requests will unnecessarily lengthen and add complexity to a hearing that already promises to be complex and lengthy. Consequently, it is in my view appropriate to limit the scope of ONA’s intervention to making written and oral submissions.

Order

19The Tribunal orders as follows:

1. The Request to Intervene is granted, but ONA’s intervention shall be limited to making written and oral submissions following the completion of evidence in respect of the merits of the Application and, if necessary, the appropriate remedy.