HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tara Kramp
Applicant
-and-
Durham Regional Police Services
Respondent
-and-
Durham Regional Police Association
Intervenor
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Kramp v. Durham Regional Police Service
WRITTEN SUBMISSIONS
Tara Kramp, Applicant
Muneeza Sheikh, Counsel
Durham Regional Police Service, Respondent
Ian Johnstone, Counsel
Durham Regional Police Association, Proposed Respondent/Intervenor
Joshua Phillips, Counsel
1This Interim Decision addresses the respondent’s request that the Tribunal add the Durham Regional Police Association (“Association”) as a respondent to this Application. It also addresses the Association’s Request to Intervene.
2In her Application, the applicant alleges that the respondent, her employer, discriminated against her because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In particular, she alleges that the respondent treated her alcohol addiction as a personal weakness rather than a medical condition or disability. The applicant only named her employer as a respondent. She did not name her union as a respondent.
Respondent’s Request to Add Association as Respondent
3In its Response, the respondent submits that the Association should be named as a respondent because the Application contains several allegations regarding the Association’s representation of the applicant. The respondent submits that the Association should be named as a respondent to properly respond to these allegations.
4The Association opposes the respondent’s request.
5In her Reply, the applicant also opposed the respondent’s request.
Analysis
6The Tribunal has the power to add parties to an Application in appropriate circumstances. In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal held that it should consider the following three questions when determining a request to add a respondent:
Are there allegations made that could support a finding that the proposed respondent violated the Code?
If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
Would it be fair, in all the circumstances, to add the proposed respondent?
7I note that Smyth was a case where an applicant requested that respondents be added to an Application. Nevertheless, the factors set out in Smyth are useful for considering a respondent’s request to add another respondent.
8Applying the factors set out in Smyth, I find that it is not appropriate to add the Association as a respondent to this Application. The only references to the Association in the Application relate to the Association’s representation of the applicant. They are not allegations that could support a finding of a Code violation by the Association. See Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025.
9Moreover, I find that adding the Association would not be fair in light of the applicant’s clear opposition to adding the Association as a respondent. A human rights Application represents the commencement of a legal proceeding by the applicant, and it is up to the applicant to identify the respondents against whom she wishes to proceed.
10In some cases, the Tribunal had added third parties as respondents if they are alleged to have caused or contributed to the alleged acts of discrimination contained in the Application. In the instant case, the respondent has not asserted any basis upon which the Association could be found to have caused or contributed to the acts of discrimination alleged against it, nor is there any basis for such a claim in the materials filed to date.
11For all of these reasons, the respondent’s request to add the Association as a respondent is denied.
Association’s Request to Intervene
12The Association requested intervenor status in this case.
13The Tribunal has recognized that a union will almost always have an interest in a human rights Application involving a member: see Marc-Ali v. Graham, 2010 HRTO 1321.
14I find that the union has an interest in the matters raised in this Application. The applicant is a member of the Association and she is claiming discrimination in employment. She is also raising issues with respect to the duty to accommodate which is a triparty obligation in unionized settings. As well, the remedies requested by the applicant may affect the Association. For all these reasons, the union is granted intervenor status. The scope of the Association’s intervention rights will be determined by the adjudicator assigned to hear the case on the merits.
ORDER
15For the reasons set out above, the respondent’s request to add the Association as a respondent is denied. The Association’s Request to Intervene is granted.
16Since the applicant and the respondent have agreed to mediation, the next step in this Application will be for the Tribunal’s Registrar to schedule a mediation.
17I am not seized of this matter.
Dated at Toronto, this 22nd day of April, 2015.
“Signed by”
Jo-Anne Pickel
Vice-chair