Wayne Talos v. Grand Erie District School Board, 2015 HRTO 349

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wayne Talos Applicant

-and-

Grand Erie District School Board Respondent

-and-

Ontario Human Rights Commission, Ontario Confederation of University Faculty Associations, the Attorney General of Ontario, Elementary Teachers’ Federation of Ontario, and Ontario English Catholic Teachers’ Association Intervenors

INTERIM DECISION

Adjudicator: Yola Grant Date: March 18, 2015 Citation: 2015 HRTO 349 Indexed as: Talos v. Grand Erie District School Board

WRITTEN SUBMISSIONS

Wayne Talos, Applicant James M. Melnick, Counsel

Grand Erie District School Board, Respondent Richelle Pollard, Counsel

Ontario Human Rights Commission, Intervenor Cathy Pike, Counsel

Attorney General of Ontario, Intervenor Bruce Ellis, Counsel

Ontario Confederation of University Faculty Associations, Intervenor Emma Phillips, Counsel

Ontario Secondary School Teachers’ Federation, Affected Party Heather Alden, Counsel

Elementary Teachers’ Federation of Ontario, Intervenor Kate Hughes, Counsel

Ontario English Catholic Teachers’ Association, Intervenor Paul Cavalluzzo, Counsel

Introduction

1The Application alleges that the respondent Grand Erie District School Board (“GEDSB”) breached s. 5(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on the basis of age when the applicant turned 65 because his health benefits ended. The Tribunal’s Interim Decision, 2013 HRTO 1949, issued on November 26, 2013, found that s. 25(2.1) of the Code is a complete defence to that allegation and there was no reasonable prospect of success with respect to it unless s. 25(2.1) is found to be contrary to the Canadian Charter of Rights and Freedoms (the “Charter”).

2On February 5, 2015, the Ontario English Catholic Teachers’ Association (“OECTA”) sought to intervene by filling a Form 5, Request to Intervene, pursuant to the Tribunal’s rules. Similarly, on February 5, 2015, the Elementary Teachers’ Federation of Ontario (“ETFO”) also sought to intervene by filling a Form 5.

3OECTA submitted that it is a union that represents approximately 45,000 members, an increasing number of whom are over age 65, who work in English Catholic elementary and high schools throughout Ontario; it has responsibility for negotiating with school boards on behalf of 73 bargaining units; it has developed expertise in promoting substantive equality and the accommodation of difference in the workplace; and it has gained significant experience in the administration and associated costs of employee benefits plans. Additionally, OECTA has been involved as a party or intervenor in a number of significant constitutional and human rights litigation matters, including appearances at the Supreme Court of Canada, and as a bargaining agent it has a distinct perspective on the Charter and the balancing of fundamental human rights in the workplace.

4ETFO submitted that it is a union that represents approximately 76,000 members, including teachers in the ETFO bargaining unit employed by the respondent GEDSB. It has members who, like the applicant, are over age 65 and are actively employed at GEDSB and other school boards across the province. It asserts that it has experience in the administration of employee benefits plans, including the Group Insurance Plan underwritten by GEDSB’s insurer as there is little difference between the plans for elementary and secondary teachers who are employed by the respondent school board. Additionally, since June 2013, ETFO is the policy holder for the provincial ETFO Long Term Disability Plan whose premiums are 100% funded by teachers.

5ETFO further submitted that it was in “a position to provide the Tribunal with the relevant facts and context relating to the benefits plans provided to teachers.”

6Both proposed interveners have retained their respective counsel from the same law firm and their requests were filed within two (2) hours of each other. Both are aware of the schedule outlined in the Case Assessment Direction of December 22, 2014, and are content to adhere to it. Both are committed to avoiding duplication regarding evidence and both are committed to cooperate to ensure no undue delay, disruption or prejudice to any party in the proceeding.

7The applicant, Wayne Talos, and the intervenor Ontario Confederation of University Faculty Associations (“OCUFA”) responded on February 6, 2015 by email with their consent to the requests by OECTA and ETFO.

8The Respondent GEDSB and the Attorney General (“AG”) communicated on February 24 and 25, respectively, that they proposed certain limitations on the intervenors’ participation if their requests to intervene were granted. The AG’s submission reads in part as follows:

Ontario is also in receipt of the Response of the… [GEDSB] to the EFTO and OECTA’s requests to intervene. Ontario substantially agrees with the Board’s position that if the Tribunal permits ETFO and OECTA to intervene in these proceedings, their interventions should be subject to the following conditions: (i) the interventions of ETFO and OECTA are done jointly and they are represented by the same counsel; (ii) ETFO and OECTA must take the record as prepared by the parties and the interveners granted status thus far; (iii) ETFO and OECTA are not permitted to cross-examine any witnesses; and (iv) ETFO and OECTA are limited to a single factum and brief oral submissions.

9There was no assertion by the respondent GEDSB or the AG that these requests for intervention were late.

10The intervenor Ontario Human Rights Commission (“OHRC”) responded on February 27, 2015 to the above submission by stating that the terms for intervention set out by the respondent GEDSB and the Attorney General “are extraordinary and unreasonable. They are also unnecessary, if the concern is the avoidance of repetition.”

11The applicant responded on March 2, 2015 to the above submission by stating that the terms for intervention set out by the respondent GEDSB and the Attorney General are unnecessary. Furthermore,

The conditions proposed may prove antithetical to the hearing process. Counsel for both Applicant Interveners have extensive experience in Constitutional and Charter law, and to prevent a robust submission from either counsel runs the risk of not hearing what may otherwise be very helpful arguments or considerations relating to the law on this matter.

12This Interim Decision addresses the separate requests of OECTA and ETFO to intervene.

ANALYSIS

13As set out in an earlier decision in the instant application where OCUFA’s status as intervenor was determined, 2014 HRTO 1639, Tribunal jurisprudence has often stated a number of factors for consideration in assessing a request for intervention:

i. Whether the intervenor has a significant interest or special contribution to make on the issues;

ii. Whether the intervenor is likely to provide assistance to the Tribunal that will not otherwise be provided;

iii. Whether the intervention will unduly delay, disrupt or prejudice the determination of the rights of the parties; and

iv. If intervention is appropriate, are there conditions that should be placed on the intervention.

14This case is significant as it involves a challenge to the constitutionality of the Human Rights Code. This is a novel application before this Tribunal.

15The intervenors asserted that many collective agreements throughout the province currently do not provide for equal benefits to older workers. The administration of these agreements and the costs of providing benefits may be impacted by the decision in this matter. This Application is a matter of public importance that extends beyond the interest of the immediate parties and thus favours intervention by knowledgeable parties, consistent with the approach outlined by Chief Justice Dubin in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., 1990 CanLII 6886 (Ont. C.A.):

In constitutional cases, including cases under the Canadian Charter of Rights and Freedoms, which is the case here, the judgment has a great impact on others who are not immediate parties to the proceedings and, for that reason, there has been a relaxation of the rules hereto fore governing the disposition of applications for leave to intervene and has increased the desirability of permitting some such interventions.

16The applicant’s union, OSSTF, has not taken an active role in this proceeding and thus the Tribunal does not have its perspective on the issues related to the applicant’s receipt of employee benefits during his continued employment past age 65.

17Unions are parties to collective agreements that govern many workplaces and these agreements may be impugned if the Code provision is found to be unconstitutional. Given the importance of this challenge to unions, administrators, employers, policyholders and providers of workplace benefits, among others, it is desirable for the Tribunal to ensure that different perspectives on the issues are heard before the matter is decided.

18The Tribunal is satisfied that both teachers’ unions, OECTA and ETFO, given their mandate, their knowledge of the collective agreement administration regarding benefits and their experience in human rights matters in the workplace, will likely assist the tribunal significantly by bringing forward the perspective of their older members who work beyond age 65.

SCOPE OF PARTICIPATION

19OECTA outlined various terms for its intervention including the ability to question witnesses if it sees a need and to file a factum according to directions from the Tribunal. ETFO’s terms for intervention included a request “to make opening submissions … and to examine and cross-examine witnesses, including expert witnesses.”

20There was no express statement regarding how ETFO proposes to provide evidence and add to the record of the proceedings in its desire to “provide the Tribunal with the relevant facts and context relating to the benefits plans provided to teachers.”

21The respondent GEDSB and the AG both requested that there be limitations on the participation of the two proposed intervenors, including a requirement that they act jointly and that they retain a single counsel. In my view, an order that would have the effect of limiting the choice of counsel or essentially requiring joint retainer of counsel is not an appropriate limit on distinct intervenors’ participation in the proceeding.

22GEDSB requested that participation of the intervenors be limited to “written and/or oral submissions” and that they not be permitted to cross-examine its witnesses. In support of this request, GEDSB relied on a decision by this Tribunal in Faysal v. General Dynamics Land Systems, 2012 HRTO 1916. In Faysal, the Tribunal stated that “[t]he evidence that the Union states it may call would address how the applicant’s entitlement to overtime was calculated” and there was no indication that the immediate parties would be unable to adduce that evidence before the Tribunal. The Tribunal further noted that:

[T]he Union has not suggested that it is in a position to provide any particular assistance regarding the merits of the issues raised in the Notice of Constitutional Question. I see no compelling reason at this time to allow the Union to cross-examine witnesses.

The Tribunal in Faysal then ruled that “it may be appropriate to revisit the scope of the Union’s participation depending on the evidence adduced regarding the union’s conduct….”

23In contrast, the proposed intervenor unions in this Application seek to address the merits of the constitutional issues. In my view, Faysal can be readily distinguished from the instant Application. No undue delay is necessarily occasioned by permitting the intervenors full participation, particularly given the commitments made by senior counsel retained by both unions. As noted by the Tribunal in CAW-Canada v. Presteve Foods Ltd., 2011 HRTO 1581:

The Tribunal can apply its active adjudication approach to ensure that, once intervention status is granted, the intervenor’s evidence focuses on the issues of assistance to the Tribunal in the case and minimizes any resulting costs to the parties.

24I am satisfied that this is not an appropriate case in which to limit the participation of ETFO and OECTA to written and/or oral submissions.

ORDER

25ETFO and OECTA shall have the same participatory rights conferred on the other non-governmental intervenor OCUFA. All three, ETFO, OECTA and OCUFA, shall coordinate their efforts with that of the applicant and the OHRC to minimize repetition of evidence or other duplication of efforts.

26The style of cause shall be amended to reflect the inclusion of ETFO and OECTA as intervenors in this Application. All parties shall provide to ETFO and OECTA a copy of their respective Application or Response, any statement of additional facts, affidavits and any other disclosure already made pursuant to the Rules and the CAD dated December 22, 2014 in this instant Application. The parties also shall ensure that ETFO and OECTA receive these materials by March 31, 2015.

27All documents that the applicant, respondent, intervenors OHRC, AG and OCUFA deliver to one another shall also be delivered to ETFO and OECTA as a party to the Application.

28Given ETFO’s commitment to “provide the Tribunal with the relevant facts and context relating to the benefits plans provided to teachers”, ETFO shall file with the Tribunal and deliver to all other parties and intervenors a list of documents to be relied on, copies of those documents, and witness statement(s) by April 3, 2015. In the event that ETFO’s affidavit evidence cannot be prepared and delivered by April 3 (instead of a witness statement(s)), a further delivery date for ETFO’s affidavit(s) will be determined at the case management conference call scheduled for April 10, 2015.

29The Tribunal reiterates the earlier direction that (a) evidence shall be introduced by way of affidavits; (b) a brief examination-in-chief of witnesses may be conducted; and (c) that full cross-examination shall be conducted before the Tribunal.