HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Michael Anderson
Applicant
-and-
Centennial College of Applied Arts & Technology, Melissa Showler, Sulakshan Sabaratnam, and Paladin Security
Respondents
-and-
United Steelworkers Local 5296
Intervenor
INTERIM DECISION
Adjudicator: Laurie Letheren
Indexed as: Anderson v. Centennial College of Applied Arts & Technology
WRITTEN SUBMISSIONS
Michael Anderson, Applicant
Mel Shear, Representative
Centennial College of Applied Arts & Technology, Melissa Showler, Sulakshan Sabaratnam, Respondents
Lauren Cowl, Counsel
United Steelworkers Local 5296, Intervenor
Shaheen Hirani, Counsel
Introduction
1This Interim Decision addresses the respondent’s Request for Order During Proceedings (“Request”) to add Paladin Security as a respondent; the Tribunal’s Notice of Intent to Defer the Application; and the Tribunal’s Notice of Intervention by Bargaining Unit.
2In the Application filed on March 7, 2016, the applicant alleges that he experienced discrimination in employment on the basis of his race, colour and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
request to add paladin security as a respondent
3The respondent, Centennial College of Applied Arts & Technology (“Centennial”) filed a Request to add Paladin Security as a respondent in this Application. Centennial submits that although the location of the allegations was the grounds of Centennial, the applicant was actually an employee of Paladin Security at the relevant time. Centennial contracted with Paladin Security to provide on-site security services. Centennial submits that in accordance with section 46.3 of the Code, a corporate or organizational respondent is deemed liable for the conduct of its employees who are acting in the course of their employment. Many of the persons named as actors in the discriminatory conduct that is alleged in this Application are employees of Paladin Security.
4The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513 (“Smyth”). In Smyth at para. 12, the Tribunal set out the following three considerations for deciding whether 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?
5Having considered the Smyth factors, I find that it is appropriate to add Paladin Security as a respondent to this Application. If the allegations made are proven by the applicant, a finding of discrimination by the corporate respondent as the applicant’s employer could be made. I find that it would be fair, in all the circumstances, to add Paladin Security.
deferral
6In the Application, the applicant indicated that a grievance had been filed on his behalf by his Union. As a result, the Tribunal issued a Notice of Intent to Defer the Application and invited the parties to make submissions on whether the Application should be deferred.
7Centennial submits that this Application should be deferred pending the completion of the grievance process as the grievance and this Application are based on the same facts.
8The applicant submits that he has requested that the grievance be withdrawn and provided documents that demonstrate that he had made this request to his Union, United Steel Workers Local 5296 (“Union”).
9The Union has indicated that it has sole carriage of the grievance and will request that the employer hold the grievance in abeyance, without prejudice, until this Application is finally determined. The employer has agreed to hold the grievance in abeyance until the Application is finally determined.
10As a result, of the grievance being held in abeyance pending the completion of this Application, I find that the Application should not be deferred.
Intervention by Union
11On July 2, 2016, the Tribunal issued a Notice of Intervention of the Bargaining Agent indicating that in accordance with Rule 11.14 of the Tribunal’s Rules of Procedure, the United Steel Workers Local 5296 was granted status as an intervenor.
12Although the Tribunal had already added the Union as an intervenor, on July 29, 2016, the applicant filed a Request asking that the Tribunal decline the Union’s request to intervene.
13The Intervenor is the bargaining agent for employees of the Paladin Security and the applicant is a bargaining unit member. As is stated above, the facts alleged in this Application overlap with those outlined in a grievance that is now held in abeyance, As a result, the Intervenor clearly has an interest in the Application.
14As 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 the Tribunal proceedings where it requests it.
15Accordingly, I find that Tribunal’s decision to grant the Union intervenor status should remain.
order
16For the reasons set out above, the Tribunal makes the following Orders:
a. The Request to add Paladin Security as a respondent is granted. The title of proceedings is amended accordingly.
b. The Application is not deferred and shall proceed through the Tribunal’s process.
c. The United Steel Workers Local 5296 remains as an intervenor in this Application.
d. A copy of all materials filed by the parties to date, along with this Interim Decision, shall be delivered to the Toronto office of Paladin Security.
e. Paladin Security and Centennial must file a Response to the Application no later than 35 days from the date they receive this Interim Decision.
f. The applicant may file a Reply to the Responses filed by the respondents within 14 days of receiving the Responses.
17I am not seized.
Dated at Toronto, this 12^th^ day of August, 2016.
“Signed By”
Laurie Letheren
Vice-chair