Cara v. York Catholic District School Board, 2015 HRTO 1417

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Giuseppe (Joe) Cara

Applicant

-and-

York Catholic District School Board

Respondent

-and-

Ontario English Catholic Teachers’ Association

Intervenor

INTERIM DECISION

Adjudicator: Mary Truemner

Date: October 22, 2015

Citation: 2015 HRTO 1417

Indexed as: Cara v. York Catholic District School Board

APPEARANCES

Giuseppe (Joe) Cara, Applicant

Self-represented

York Catholic District School Board, Respondent

J.P. Alexandrowicz and Amanda Lawrence, Counsel

Ontario English Catholic Teachers’ Association, Intervenor

Jerry Raso, Counsel

Introduction

1This Application, filed on March 24, 2014, alleges discrimination with respect to employment because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On September 25, 2014, the applicant filed a Request for Order During Proceedings to amend the Application (“Request to amend”), but, prior to any response from the respondent to the Request to amend, the Tribunal issued a Case Assessment Direction, directing that there be a summary hearing to determine whether the Application had no reasonable prospect of success. A summary hearing was held, and the Tribunal issued an Interim Decision, 2015 HRTO 458, which held that the Application could not be dismissed at that stage as having no reasonable prospect of success. The Tribunal then scheduled a hearing for November 19 and 20, 2015.

3On September 11, 2015, the applicant filed another Application (Tribunal File Number 2015-20558-I) which contained the same allegations as made in his Request to amend.

4The applicant has also filed a Request for Order During Proceedings for the production of documents (“Request for production”).

5The parties attended a case management conference, by way of teleconference, on October 21, 2015 to address procedural issues as well as scheduling and outstanding requests.

6This Interim Decision documents the interim decisions made at the case management conference, deals with the request to intervene by the Ontario English Catholic Teachers’ Association (“the Association”), and provides directions for next steps.

Request to amend; 2015-20558-I Withdrawal; hearing adjournment

7The original Application describes a job competition in February 2014 for the position of acting Department Head of Religion. The applicant applied for the position, but was rejected. He alleges that the respondent preferred younger candidates, that he was more qualified than the successful candidate, and that the respondent required skills for the position that disproportionately affected older candidates. The Request to amend pertains to a separate job competition in April 2014 for the permanent position of Department Head. The applicant seeks to add allegations that the respondent essentially applied the same discriminatory factors in its decision not to hire the applicant for the permanent position as in their decision earlier not to hire him for the acting position.

8At the case management conference, the respondent consented to the amendments requested in the Request to amend, on the condition that the Application recently filed by the applicant (2015-20558-I) be withdrawn. The applicant agreed to withdraw it. Another condition that the respondent attached to its consent was that the Tribunal adjourn the hearing dates of November 19 and 20, 2015 to permit the respondent time to respond to the additional allegations made in the amendment. The applicant consented to an adjournment of the hearing to allow the respondent that time.

9At the case management conference, the respondent explained that the reason that it had not responded to the Request to amend was because the Case Assessment Direction providing notice of the summary hearing made no mention of the Request to amend, and it was not raised at the summary hearing or in the Interim Decision following the summary hearing. The parties next participated in mediation, and then the Tribunal issued a Notice of Hearing which also made no reference to the Request to amend. The respondent explained that it needed an adjournment of the hearing to have time to prepare an amended Response that would contain information relevant to the second job competition for the permanent position.

10The applicant agreed to the adjournment and agreed to withdraw his recent Application (2015-20558-I) if the Request to amend would be granted.

11In the interest of streamlining the proceedings, particularly so that only one Application would proceed, incorporating both job competitions, and not two at separate times, I granted the Request to amend and the adjournment of the November hearing dates, noting consent by the parties and no issue of prejudice raised by them.

Direction for request for production

12At the case management conference, the applicant agreed to file an amended Request for production after receiving from the respondent all arguably relevant documents (sometime after December 18, 2015, but sufficiently in advance of the rescheduled hearing to allow the respondent time to respond).

REquest to intervene

13On June 30, 2015, the Ontario English Catholic Teachers’ Association (“the Association”) filed a Request to Intervene (Form 5). The applicant filed a response, indicating his opposition to its intervention because he alleges that the Association unfairly chose not to help him with respect to the respondent’s allegedly discriminatory refusals to hire him for the acting and permanent positions. The applicant also indicated that the Association’s delay in seeking intervener status will cause substantial harm and prejudice to him, but he did not describe what that substantial harm and prejudice is.

14The respondent consents to the Association intervening.

15As stated by this Tribunal in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, at para. 13:

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.

16The Association indicates that to the extent that this case may raise questions about the collective agreement, it has an interest in those issues, as well as any potential remedy that may arise should the applicant be successful in establishing a violation of the Code. The Association also argues that the applicant’s Request for production indicates that he is seeking documents which, if produced, may affect the rights of other members of the bargaining unit. The Association wishes to leave open the option to make argument in this case, including argument with respect to any pursued request for production by the applicant. The Association also seeks the right to cross examine witnesses and “to call evidence, if necessary”.

17In my view, it is appropriate that the Association be granted intervenor status. The applicant’s evident dissatisfaction with the Association and his unexplained position that he will experience some kind of prejudice are insufficient reasons to alter the normal approach the Tribunal has taken in these kinds of situations. In all the circumstances, the Request to intervene to make argument and to cross-examine witnesses is appropriate. However, at this juncture, the Association must specifically request the right to call evidence, providing notice to the parties and to the Tribunal as much in advance as possible as to what the Association anticipates its intended witness(es) would say.

orders

18The Request to amend is granted.

19The hearing on November 19 and 20, 2015 is adjourned.

20The second Application (2015-20558-I) is withdrawn.

21The Association’s Request to intervene to make argument and to cross-examine witnesses is granted, and the style of cause amended accordingly.

next steps

22In the circumstances, the Respondent must file its response to the amendments to the Application by November 25, 2015.

23Within 14 days of receiving the response to the amendments, the applicant may file any reply to any new information that respondent provides.

24By December 18, 2015, all parties must ensure that they have delivered to each other and to the Association their documents that are arguably relevant to the amended Application.

25If he wishes to pursue his Request for production, the applicant must file an amended Request for production, after receiving the respondent’s arguably relevant documents, and at least 45 days prior to the hearing which is soon to be scheduled. The respondent and the intervenor must file any responses to such a Request for production within 14 days of receiving it.

26The Registrar will cancel the November 19 and 20, 2015 hearing dates, and canvas the parties for new hearing dates for two consecutive days in February 2016 or later. The Tribunal will then issue a Notice of Rescheduled Hearing that will contain information about witness statements and documents upon which the parties intend to rely at the hearing, as well as the deadline for doing so. (The Notice will not provide a deadline for delivering to the parties and intervenor arguably relevant documents given that this Interim Decision has made December 18, 2015 the date for doing so).

27The Registrar will deliver an administrative closing letter to the parties confirming the closing of File 2015-20558-I given the applicant’s withdrawal of that Application.