Borba v. Toronto Transit Commission, 2015 HRTO 1455

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carla Borba Applicant

-and-

Toronto Transit Commission Respondent

-and-

Amalgamated Transit Union Intervenor

INTERIM DECISION

Adjudicator: Laurie Letheren Date: October 30, 2015 Citation: 2015 HRTO 1455 Indexed as: Borba v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Carla Borba, Applicant Self-represented

Toronto Transit Commission, Respondent Patricia Matusiak, Counsel

Amalgamated Transit Union, Intervenor Alanna Mihalj, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

Status of Amalgamated Transit Union

2On September 30, 2015 the Amalgamated Transit Union ("Union"), filed a Form 28, Notice of Intervention by a Bargaining Agent. In accordance with Rule 11.14 of the Tribunal's Rules of Procedure, the Tribunal confirmed the Union's status as an intervenor in a Notice of Intervention by Bargaining Agent dated October 2, 2015. This Notice invited any party who opposes the intervention to file a Request for Order.

3On October 8, 2015 the applicant filed a Request for Order that the Union be removed as intervenor and, in the alternative, that the Union be added as a respondent. The applicant's submissions made in support of the Request repeat or expand on her allegations that the respondent denied her sick benefits and failed in its duty to accommodate her. The applicant does state that:

the Intervener (sic) refused and ignored the Applicant's best interests in bad faith and in a discriminatory manner by failing to represent me before my employer in trade Union and did not treat the Applicant equally in employment discriminating against the Applicant's disability.

Beyond this assertion, however, the applicant has not alleged any facts that could demonstrate that the Union breached the applicant's Code rights.

4The Union responded to the Request and submits that its status as an intervenor in this Application is appropriate. The Union is the exclusive bargaining agent for the applicant and continues to represent her in her current termination grievance.

5The Union submits that it should not be added as a respondent since the applicant has made no allegations that the Union has violated her Code rights. In order to claim that the Union violated her Code rights, the applicant must allege more than a failure to act. She must allege that the adverse treatment is connected to her disability.

6The legal test to be applied by the Tribunal when a request is made to add a party has been set out in a number of Tribunal decisions including Smyth v. Toronto Police Services Board, 2009 HRTO 1513.

7In Smyth the identified factors to be considered where a party seeks to add a respondent are, at paragraph 7:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) Would it be fair, in all the circumstances, to add the proposed respondent?

8The applicant is alleging that the Union did not support her and that is the basis for her request that the Union be removed as an intervenor and added as a respondent. In Traversy v. Mississauga Professional Firefighters' Association, 2009 HRTO 996, the Tribunal stated as follows at para. 33:

Assuming that the Code also applies to this aspect of a union's relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

9The applicant has baldly asserted that the Union discriminated against her but has failed to identify any actual events which could give rise to a finding that the Union has violated her Code rights. The applicant appears to be dissatisfied with the Union's representation of her interests. However, this is not a basis to add the Union as a respondent.

10The Union requested intervenor status on the basis that it continues to represent the applicant in her grievance. The Union states that during the course of this Application, remedial issues could arise that could affect the operation of the collective agreement or a member's rights under the agreement.

11As stated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, at paragraph 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.

12The Tribunal's general practice is to grant intervention status to a union which represents the applicant's bargaining unit. See for example D.R. v. Upper Grand District School Board, 2011 HRTO 1187, Oxley v. Vaughan (City), 2011 HRTO 1295, and Daoust v. Health Services North, 2012 HRTO 278. I see no exceptional circumstances to deviate from that practice here where it appears to me that the Union's participation might assist the Tribunal. The Union's status as intervenor is maintained. The extent of its participation in this Application shall be determined by the Vice-chair who presides.

Consolidation

13The applicant has requested that this Application be consolidated with Application 2013-16404-I. The applicant alleges in this Application that she experienced reprisal as a result of filing Application 2013-16404-I. However, beyond this connection, the facts and allegations set out in Application 2013-16404-I differ and cover a different period of time from those in this Application.

14The pleadings in this Application are not complete.

15Today is the fourth day of the merits hearing of Application 2013-16404-I.

16The test for consolidation has been set out in Persaud v. Toronto District School Board, 2008 HRTO 25, as follows:

1. The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;
2. The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and
3. Whether there are common issues of fact or law.

17Given the different facts and timeframes; and the potential disclosure and witness differences; and most importantly, given the different stages that each of these Applications have reached, it would not be fair, just or expeditious to consolidate these two Applications. See A.F. v. Durham Regional Police Services Board, 2010 HRTO 2462; and Frost v. Great Blue Heron Charity Casino, 2012 HRTO 210.

Deferral

18On September 25, 2015 the respondent filed a Request for Order that the Application be deferred pending the outcome of the grievance filed by the Union. Step 3 of that grievance was scheduled for September 29, 2015. The respondent submits that the grievance is based on the same facts and issues as those raised in Application; the arbitrator has the power to implement and enforce the rights and obligations under the Code and to award remedies; the grievance is much further advanced than the Application; and that the parties should be afforded the benefit of the grievance procedures set out in the collective agreement.

19The applicant has filed submissions in which she opposes the deferral of the Application. She states that there is no grievance on the same subject matter as this Application and refers to a letter from the Union dated June 17, 2015. However, a review of this letter indicates that the Union was filing at Step 4 of the grievance process. The applicant also states that she only became aware that the Union was grieving her termination, which is the subject of this Application, on October 2, 2105. It would appear that the applicant may have more than one grievance that is currently proceeding against the respondent; however, there does not appear to be a dispute that the grievance which the respondent states is now at Step 3 is based on the same facts and issues as those raised in Application.

20The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal must consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application. In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following comments about deferral at paras. 18-19:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

21In this case the facts and issues to be determined in the grievance arbitration appear to be the same as the allegations in the Application. The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues, see Mattingly v. Ontario (Community Safety and Correctional Services), 2015 HRTO 21.

22Applying the principles considered by the Tribunal in similar applications, I find it is appropriate to defer this Application pending the conclusion of the grievance proceeding. It would not be constructive to have two concurrent proceedings consider the same facts as this may lead to contrary findings. The grievance arbitration is further advanced in its process than the Application. Therefore, it is most fair, just and expeditious to defer this Application.

23Accordingly, the Application is deferred pending the conclusion of the grievance proceeding. The Tribunal directs the parties' attention to Rule 14 of the Tribunal's Rules of Procedure which sets out the procedure if a party wishes to proceed with an application that has been deferred. If a party wished to reactivate this Application, it must make a Request for an Order to reactivate within 60 days of the conclusion of the grievance process.

ORDER

24The applicant's request to add the Amalgamated Transit Union as a respondent is denied.

25The Amalgamated Transit Union will remain as an intervenor.

26The applicant's request to consolidate this Application with Application 2013-16404-I is denied.

27The Application is deferred pending the outcome of the termination grievance.

28I am not seized.