Smith v. Metro Ontario Inc., 2014 HRTO 93

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Smith Applicant

-and-

Metro Ontario Inc., Claudio Duran, Frank Juisevic and William Hill Respondents

CAW Local 414 Intervenor

INTERIM DECISION

Adjudicator: Kathleen Martin Date: January 22, 2014 Citation: 2014 HRTO 93 Indexed as: Smith v. Metro Ontario Inc.

WRITTEN SUBMISSIONS

Michael Smith, Applicant Self-represented

Metro Ontario Inc., Claudio Duran, Frank Juisevic and William Hill, Respondents Dirk Van De Kamer, Counsel

CAW Local 414, Intervenor David McCormick, Representative

1This is an Application alleging discrimination with respect to employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses a Request to Intervene and provides directions regarding the hearing.

Request to Intervene

2The Application arises out of the applicant’s employment with the respondent Metro Ontario Inc. (“Metro”). During the time of his employment, the applicant was a member of the CAW Local 414. Local 414 filed a Request to Intervene on January 23, 2013, asking that it be permitted to address any proposed resolution to the complaint which may impact on the bargaining rights of the union. A Statement of Delivery was attached to the Request indicating that it had been sent to the applicant and Metro but not the individuals (who at that time had filed separate responses from Metro).

3No responses were filed to the Request within the time frame permitted by the applicant or Metro.

4On January 13, 2014, the Tribunal issued a Case Assessment Direction indicating that the Registrar would deliver a copy of the union’s Request to Intervene to the individual respondents and that they shall provide any objection to the Request by January 17, 2014.

5In response to the CAD, a counsel has responded on behalf of the “respondents”, which I presume includes Metro and the named individuals. The submissions indicate that the respondents do not object to the Request to Intervene. In addition, the applicant has now stated that he objects to the union being present at the hearing, although no submissions explaining the basis of his objection have been provided.

6The Tribunal has found on numerous occasions that a union 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 intervenor status when it requests it. See Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 at para. 13, and cases citing that decision.

7Having regard to the material filed and the submissions made (including the absence of any explanation for the applicant’s objection) I see no reason in this case to depart from the Tribunal’s established practice regarding the granting of intervenor status in these circumstances. As the applicant’s exclusive bargaining agent with respect to the terms and conditions of his employment while formerly employed by the respondent, I am satisfied that the union has an interest in the Application and ought to be permitted to intervene in the Application.

8The union’s Request to Intervene in the Application is granted. The extent and nature of union’s participation in the hearing will be determined at the hearing.

Other Directions

9In the Case Assessment Direction dated January 13, 2014, the Tribunal also directed that the respondents indicate their position in respect of the applicant’s query of whether or not his physician was required to attend the hearing. The respondents have taken the position that a full and fair hearing into this matter will require the attendance of the doctor for the purpose of cross-examination concerning his report.

10Having regard to the respondents’ position and the issues in the Application and Responses, it would appear that the physician’s evidence may be required. However, given that the hearing commences on January 23, 2014, and the respondents have only recently advised of their position, the applicant is not required to have the physician in attendance at the commencement of the hearing. The applicant is directed to ascertain whether or not his physician could be in attendance in the afternoon of January 23, 2014, and if not, the reasons for his unavailability and when he could be available in the future.

Summary of Directions

11The Tribunal directs:

• The union’s Request to Intervene in the Application is granted, and

• The applicant shall ascertain whether or not his physician can be in attendance in the afternoon of January 23, 2014, and if not, the reasons for his unavailability and when he can be available in the future.