O’Brien v. Kingston (City), 2014 HRTO 678

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adrian O’Brien

Applicant

-and-

The Corporation of the City of Kingston and Sherry Cruise

Respondents

-and-

Canadian Union of Public Employees and its Local 109

Intervenor

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: May 13, 2014

Citation: 2014 HRTO 678

Indexed as: O’Brien v. Kingston (City)

WRITTEN SUBMISSIONS

Adrien O’Brien, Applicant

Self-represented

The Corporation of the City of Kingston and Sherry Cruise, Respondents

Susan Nicholson, Representative

Canadian Union of Public Employees and its Local 109, Intervenor

Sue Lott, Counsel

Introduction

1This Interim Decision addresses the respondents’ request that the Tribunal dismiss the Application on the basis that another proceeding has appropriately dealt with the substance of the Application. It also addresses the Request to Intervene filed by the Canadian Union of Public Employees and its Local 109 (“union”).

1In the Application, the applicant alleged that the respondents discriminated against him because of race and age contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). The applicant is employed by the organizational respondent as a transit bus operator. Among other things, the applicant alleged that he was discriminated against when he was not provided an equal opportunity to compete for the position of firefighter.

Request to Dismiss

2In their Response, the respondents submit that the Tribunal should dismiss the application under s. 45.1 of the Code. Section 45.1 of the Code provides the Tribunal with the power to dismiss Applications if the substance of the Application has been appropriately dealt with by another proceeding. In this case, the applicant made an internal complaint under the organizational respondent’s harassment and discrimination policy. The complaint was handled by the organizational respondent’s Labour Relations and Health and Safety Officer who ultimately dismissed the complaint.

3Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

4Section 45.1 is generally considered in two parts: (1) was there another “proceeding” and, (2) if so, did it “appropriately deal with” the substance of the application.

5The Tribunal’s jurisprudence has explained that section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere. The Tribunal’s jurisprudence has held that an internal investigation or internal complaints process does not generally constitute “a proceeding” within the meaning of section 45.1 of the Code. See for example, Armstrong v. Ontario (Revenue), 2012 HRTO 1527; Maurer v. Metroland Media Group, 2009 HRTO 200; and Schuyler v. Ford Motor Company of Canada, 2009 HRTO 855.

6In the circumstances of this case, I find that the organizational respondent’s own internal investigation cannot be found to constitute “a proceeding” as contemplated by s.45.1 of the Code. Therefore, even if it dealt with the same issues raised in the Application, it cannot be said to have appropriately dealt with the substance of the Application within the meaning of s. 45.1 of the Code.

7For these reasons, the respondents’ request to dismiss is denied.

request to intervene

8The union filed a Request to Intervene because it is the applicant’s current bargaining agent.

9As the Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

10Based on the material submitted by the union, I am satisfied that the union has an interest in the outcome of the Application and relevant information regarding the facts alleged in the Application. As such, in accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by a union, the union’s request to intervene is granted. The scope of the union’s participation in the hearing will be determined by the adjudicator hearing the Application.

Order

11For the reasons set out above, the respondents’ request to dismiss is denied and the union’s Request to Intervene is granted. Since the respondents and the applicant have agreed to mediation, the Registrar will proceed to schedule a mediation in this matter.

12I am not seized of this matter.