Joslyne Rizza v. The Corporation of the City of Windsor, 2014 HRTO 570

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joslyne Rizza

Applicant

-and-

The Corporation of the City of Windsor

Respondent

-and-

Windsor Professional Firefighters Association

Intervenor

INTERIM DECISION

Adjudicator: Sheri Price

Date: April 23, 2014

Citation: 2014 HRTO 570

Indexed as: Rizza v. Windsor (City)

1This is an Application under s.34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), in which the applicant alleges that the respondent employer discriminated against her because of sex and family status. Among other things, the applicant alleges that the respondent discriminated against her by failing to provide the applicant with modified duties on her regular work schedule (i.e. two 24-hour shifts per week) while she was pregnant. By way of remedy, the applicant seeks monetary compensation and an order requiring the respondent to develop a policy to accommodate pregnant firefighters on a 24-hour shift schedule.

2The hearing is scheduled to take place in Windsor on May 21 and 22, 2014.

3This Interim Decision addresses the Windsor Professional Firefighters Association’s March 21, 2014 Request to Intervene in the Application.

REQUEST TO INTERVENE

4The applicant’s trade union, the Windsor Professional Firefighters Association (“WPFA” or “the Association”) filed a Request to Intervene in the Application on March 21, 2014. In support of its Request to Intervene, the Association points out that it is the sole and exclusive bargaining agent for firefighters in the applicant’s workplace and party to the collective agreement with the respondent, which collective agreement governs the firefighters’ terms and conditions of employment. The Association submits that the accommodation of any fire and rescue services firefighter, such as the applicant, would potentially affect other members of the bargaining unit, who are represented by the Association. Accordingly, the Association submits that it has an interest in the Application that justifies its being permitted to intervene in the Application.

5The applicant supports the Association’s Request to Intervene in the Application.

6The respondent opposes the Request.

7The respondent submits that the Request to Intervene ought to be denied because it was not filed by March 1, 2014, as directed by the Tribunal in a February 19, 2014 Case Assessment Direction (“CAD”) in this matter. In addition, the respondent points out that, although WPFA indicated that it intended to file a Request to Intervene in the Application in January 2013, it did not do so for over one year, even when the respondent filed a December 27, 2013 Request for an Order during Proceedings, seeking an Order from the Tribunal compelling WPFA to file a Request to Intervene in the Application, failing which it would not be permitted to intervene in the Application.

8The respondent also objects to the Request to Intervene on the basis that it represents an attempt by WPFA to pursue its own agenda and raise issues that are not part of the Application that is before the Tribunal, even on the most liberal interpretation of the Application. The respondent submits that, in the event that WPFA’s Request to Intervene is granted, it ought to be granted on the basis that the intervenor, like the other parties to the Application and the Tribunal itself, is bound to the Application as filed and the issues raised therein. The respondent submits that to permit the intervenor to raise issues that are not part of the Application would cause substantial prejudice to the respondent, because the respondent has not had an opportunity to respond to the allegations in the March 21, 2014 Request to Intervene. The respondent submits that if WPFA were permitted to pursue the allegations and issues raised in the Request to Intervene, the May 2014 hearing in this matter would very possibly have to be adjourned in order to give the respondent an opportunity to respond to the new issues and allegations.

9I am not persuaded that WPFA’s Request to Intervene should be denied because it was not filed until March 21, 2014, approximately three weeks after the March 1, 2014 deadline established in the Tribunal’s February 19, 2014 CAD.

10In his March 17, 2014 letter to the Tribunal, counsel for WPFA explained that the reason his client failed to comply with the Tribunal’s February 19, 2014 direction is because counsel did not see the emailed version of the CAD when checking email on his cell phone while out of town and his assistant filed the hard copy of the CAD before his return to the office, thinking counsel would have seen the emailed version. In other words, counsel submits that the reason WPFA did not comply with the March 1, 2014 deadline for the filing of its Request to Intervene was because counsel did not know about the deadline. Counsel for WPFA submits, and I agree, that WPFA should not have an otherwise valid Request to Intervene denied solely because of counsel’s inadvertent failure to comply with the Tribunal’s CAD. In addition, I cannot see how the respondent would be prejudiced by permitting the Association to file a Request to Intervene three weeks after the deadline established by the Tribunal in its February 19, 2014 CAD, particularly given that WPFA indicated as early as January 2013 that it intended to intervene in the Application, and given that WPFA participated in the April 2013 mediation in respect of this matter.

11I now turn to whether WPFA’s interest in the Application is sufficient to warrant the granting of intervenor status. In my view, it is.

12The Tribunal has found on numerous occasions that a bargaining agent such as WPFA nearly always has an interest in an application brought by a member of one of its bargaining units and that, absent exceptional circumstances, will be granted intervention status when it seeks it. See Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 at para. 13, and cases citing that decision.

13In light of the fact that WPFA is the applicant’s exclusive bargaining agent with respect to the terms and conditions of her ongoing employment by the respondent, I am satisfied that WPFA has an interest in the Application and that it ought to be permitted to intervene in the Application. The fact that the applicant in this case is seeking remedial orders regarding workplace accommodation that could potentially affect other members of the bargaining unit represented by WPFA also weighs strongly in favour of the granting of intervenor status to WPFA.

14That said, the fact that WPFA is permitted to intervene in the Application does not necessarily mean that WPFA is entitled to raise new allegations against the respondent that are not already contained in the Application.

15In its Request to Intervene, WPFA indicates that it seeks to rely on certain material facts which are not pleaded by the applicant or the respondent. For example, WPFA indicates that it seeks to adduce evidence regarding the respondent’s alleged failure to accommodate three other pregnant firefighters, for the purpose of “illustrating the problem and the potential solution” with respect to the development of an appropriate policy for accommodating pregnant firefighters. In addition, WPFA indicates that it wishes to rely on facts relating to the respondent’s treatment of the applicant during her second pregnancy (i.e. not the one that gave rise to the Application that is presently before the Tribunal) at the upcoming hearing. Although WPFA has identified the other firefighters about whom it wishes to call evidence, the Request to Intervene does not particularize the allegations about the respondent’s alleged treatment of them. Nor does it contain particulars about the respondent’s alleged treatment of the applicant during her second pregnancy.

16In the circumstances of this case, I have concerns that permitting the intervenor to pursue factual allegations against the respondent that are not contained in the Application (or Response) would be unfair to the respondent, given the timing of the new allegations and the lack of particulars in the Request to Intervene. In addition, it is not clear to me at this point how evidence regarding the respondent’s alleged treatment of other individuals would assist me in determining the issues in this case, namely whether the respondent infringed the applicant’s rights under the Code and if so, the appropriate remedy for such infringement.

17However, before making any final determination with respect to this issue, I wish to give the intervenor an opportunity to respond to the respondent’s April 8, 2014 response to the Request to Intervene and to provide any other written submissions it may wish to make with respect to whether it ought to be permitted to pursue the new allegations identified in its Request to Intervene. Directions in this regard are below.

18Finally, with respect to the respondent’s submission that the intervenor should not be permitted to ask the Tribunal to order certain prospective remedies in this case, I would point out that, pursuant to s.45.2(2) of the Code, in the event that liability under the Code is established, the Tribunal has jurisdiction to order any party to the Application to do anything that, in the opinion of the Tribunal, the party ought to do to promote future compliance with the Code, whether or not the Tribunal has been asked to make such an order. Accordingly, in the event that the Tribunal finds that the respondent has infringed the applicant’s rights under the Code, in this case, as in the normal course, the Tribunal may consider whether to make any orders with respect to future practices, and hear submissions from all of the parties with respect to that issue.

DIRECTIONS

19The Windsor Professional Firefighters Association’s Request to Intervene in the Application is granted. The precise nature and scope of the intervenor’s participation in the hearing will be determined by the adjudicator assigned to hear the Application on its merits.

20In the event that the intervenor WPFA wishes to pursue new factual allegations against the respondent that are contained in its Request to Intervene, but which are not within the scope of the Application, the intervenor is directed to provide its written submissions with respect to whether it ought to be permitted to do so, within seven (7) days of the date of this Case Assessment Direction.

21As the parties are aware, the deadline for the pre-hearing exchange of documents and witnesses was on April 7, 2014. In the event that the intervenor WPFA wishes to adduce documents or present witnesses at the hearing of the Application, within seven (7) days of the date of this Case Assessment Direction, the intervenor WPFA is required to provide the other parties to the Application and the Tribunal with (1) a copy of the documents it wishes to rely upon, if any; (2) a list of the witnesses that it wishes to call, if any; and (3) a will-say statement for each witness it wishes to call, if any.

22The applicant and respondent may file any submissions in reply to the intervenor’s submissions within five (5) days of the date of the intervenor’s submissions.

23The applicant and the respondent are directed to provide the intervenor with a copy of their pre-hearing disclosure as soon as possible and in any event within seven (7) days of the date of this Case Assessment Direction.