Michael Giftopoulos v. Hamilton-Wentworth Catholic District School Board, 2015 HRTO 40

Human Rights Tribunal of Ontario

B E T W E E N:

Michael Giftopoulos Applicant

-and-

Hamilton-Wentworth Catholic District School Board Respondent

-and-

Ontario English Catholic Teachers’ Association Intervenor

INTERIM DECISION

Adjudicator: Yola Grant Date: January 12, 2015 Citation: 2015 HRTO 40 Indexed as: Giftopoulos v. Hamilton-Wentworth Catholic District School Board

APPEARANCES

Michael Giftopoulos, Applicant Harry Kopyto, Representative

Hamilton-Wentworth Catholic District School Board (HWCDSB), Respondent Michelle Henry, Counsel

Ontario English Catholic Teachers’ Association (OECTA), Intervenor Jerry Raso, Counsel

Introduction

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

2By decision of this Tribunal (2014 HRTO 51) dated January 13, 2014, the union OECTA was granted leave to intervene and the scope of its intervention was left to be decided by the hearing Vice-chair. A conference call was held on January 9, 2015 with the parties and intervenor to determine OECTA’s scope of participation in the hearing of the Application.

3OECTA claimed in its application for intervention (Form 5) that OECTA “has relevant information pertaining to the merits of this matter” and furthermore, any remedy in this application may affect other bargaining unit members.

4At the outset of the conference call on January 9, 2015, OECTA stated that it did not have a position on the merits of the Application and it did not propose to call evidence relating to merits. OECTA would, however, call evidence and cross-examine on remedy as any remedy ordered by this Tribunal could impact other members and the operation of the collective agreement (e.g. bumping rights). Finally, OECTA would like to have the ability to call evidence regarding the actions of union official(s) as the applicant has made a lot of negative comments about the union in the instant proceeding.

5The respondent employer, HWCDSB, supported the union’s intervention on the basis of the scope it proposed.

6The applicant requested that the union’s scope of intervention be limited to addressing remedy only and noted that “if there are things said that are negative about the union, these do not bind the union. If the applicant raises a duty of fair representation, the labour board would be the appropriate forum for the union to respond.”

7The applicant proposed and the respondent agreed that the hearing proceed in a bifurcated manner to hear evidence and determine the merits before addressing remedy.

ANALYSIS

8OECTA sought to rely on Jeppersen v. Ancaster (Town), 2001 CanLII 26209, a decision of the Board of Inquiry, predecessor to this Tribunal. In Jeppersen, the proposed intervenor (firefighters association) sought to make submissions on remedy only, and in particular, any order pertaining to an accommodation policy. The intervenor did not seek to address the issue of infringement of the Code. While the Jeppersen decision does not rule out the possibility that an intervenor may seek status to address merits, it does not assist OECTA in its request to cross-examine the applicant and to call evidence during the merits hearing when OECTA states that it takes no position on the merits.

9In D.R. v. Upper Grand District School Board, 2011 HRTO 1187, at paragraph 12, the Tribunal stated:

In accordance with Rule 11 of the Tribunal’s Rules of Procedure, the Tribunal may allow a person or organization to intervene in any case at any time on such terms as the Tribunal may determine. Tribunal jurisprudence has articulated 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.

DECISION

10There is no allegation that the union infringed the applicant’s rights under the Code and the union did not seek to be added as a party to be afforded the rights and liabilities possessed by parties to the Application. OECTA acknowledged that it is not a respondent but it wanted to “make sure that there are no negative findings of fact against it” given allegations by the applicant that it colluded with the employer. OECTA sought to cross-examine the applicant and to call witnesses, in the event that the Tribunal considered those allegations relevant and found it necessary to make a finding of fact in relation to union activity, including the union’s representation of the applicant in his quest for accommodation by the respondent school board.

11Furthermore, OECTA did not seek to intervene by way of amicus curiae or friend of the court to assist in the determination of the infringement of the applicant’s rights.

12OECTA will not provide evidence to address the merits as it initially claimed in its Form 5 application to the Tribunal. Indeed, in the days just prior to the start of the hearing, it takes “no position” on the merits. The union’s participation in the merits part of the hearing is for the express purpose of guarding its reputation and that of its officials. The Court of Appeal for Ontario in Hurd v. Hewitt, (1994), 1994 CanLII 874 (ON CA), 20 O.R. (3d) 639 (Ont. C.A.), held that even in instances in which issues of reputation or character of non-parties are implicated in a proceeding, there is no absolute rule requiring these parties be heard prior to making findings against them. Having regard to the course of the conference call, it seems likely that participation by the union may incur delay and disruption in the instant proceeding as the applicant and the union are engaged in a collateral dispute that is more appropriately addressed before the Ontario Labour Relations Board.

13The union’s participation is unlikely to assist in determining the merits of the application and thus its role as intervenor will be limited to participation regarding remedy, if any, after a determination of the merits of the Application.