HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kyle Bociurko
Applicant
-and-
International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers; International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Lodge 555; and Boilermaker Contractors’ Association of Canada
Respondents
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Bociurko v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers
WRITTEN SUBMISSIONS
Kyle Bociurko, Applicant
Marisa Scotto di Luzio, Counsel
International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Lodge 555, Respondents
Jesse Kugler, Counsel
BFI Constructors Ltd., Proposed Respondent
Christopher Lane, Counsel
Construction Opportunities Development Council Inc., Proposed Respondent
Anna Maria Moscardelli, Representative
1This Interim Decision addresses the issue of the proper respondents to this Application as well as the request to dismiss the Application for jurisdictional reasons made by the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers (“Boilermakers union”) and the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Lodge 555 (“Lodge 555”, together “the union respondents”).
2The applicant filed an Application alleging discrimination because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The applicant is a boilermaker and member of Lodge 555. He also has a prescription for medical marijuana. The applicant alleges that he has experienced discrimination because of his disability or perceived disability through the implementation of drug and alcohol testing policies pursuant to a collective agreement entered into between the Boilermakers union and the Boilermaker Contractors’ Association of Canada. The applicant also alleges that the respondents failed to accommodate his disability by conducting an individualized assessment of his disability-related needs including testing for actual impairment. Finally, the applicant alleges that the union respondents discriminated against him by refusing to dispatch him to available jobs through its hiring hall as a result of his use of medical marijuana.
Jurisdictional objections
3In their Response, the union respondents submit that the Tribunal lacks jurisdiction over this Application because falls within federal jurisdiction and/or falls within the exclusive jurisdiction of the Ontario Labour Relations Board (“OLRB”). I disagree.
4I do not agree with the union respondents that the “pith and substance” of the Application relates to events involving BFI Constructors Ltd. (“BFI”). There are no allegations against BFI in the Application. The substance of the Application relates to the implementation of allegedly discriminatory drug and alcohol testing policies pursuant to a collective agreement vis a vis the applicant in Ontario.
5I also do not agree that the applicant’s discrimination allegations fall within the exclusive jurisdiction of the OLRB. While it is true that the applicant might have brought an application under section 75 of the Ontario Labour Relations Act, he did not. The respondent provided no authority for the proposition that the OLRB has exclusive jurisdiction over allegations of discriminatory conduct by a trade union in its referral of members as part of a hiring hall.
6For the reasons above, the jurisdictional objections made by the union respondents are denied.
Proper respondents
7In their Response, the union respondents proposed the addition of BFI as an additional respondent in this case. Both the applicant and BFI opposed adding BFI as a respondent.
8In its Response, BFI proposed the addition of the Construction Opportunities Development Council Inc. (“CODC”) as a respondent. Both the applicant and the CODC opposed adding the CODC as a respondent.
9By Request for Order During Proceedings (“Request”), the applicant requested that the Tribunal remove both BFI and the CODC as respondents. The applicant confirmed that he did not allege any violations of the Code by the BFI or the CODC.
10The union respondents oppose the applicant’s Request and submit that both BFI and the CODC are proper respondents in this case. The union respondents submit that the BFI contributed to the discrimination that is alleged in this case by requiring the applicant to undergo a drug and alcohol test and by refusing to continue to employ him upon learning of his positive test results. According to the union respondents, it was this conduct that led them to undertake the actions set out in the Application. The union respondents argue that the BFI would bear some liability if the Tribunal were to find a violation of the Code in this case.
11The union respondents submit that the CODC is a proper respondent because it is the CODC’s policies that are referenced in the collective agreement entered into between the Boilermakers union and the Boilermaker Contractors’ Association of Canada.
Finding
12The Tribunal has the power to add and remove 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. These same factors are applicable to requests to remove respondents.
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?
13Applying the factors set out in Smyth, I find it appropriate to remove BFI and the CODC as respondents in this case. 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. See Hildebrandt v. Queen’s University, 2015 HRTO 998. The applicant has confirmed that he is not making any allegations of Code violations by BFI and CODC. There is no process under the Code for a respondent to make the kind of third party claim that is permitted under the Rules of Civil Procedure.
14For these reasons, I find it appropriate to remove BFI and the CODC as respondents.
order
15For the above reasons, the Tribunal orders as follows:
a. The jurisdictional objections raised by the union respondents are denied; and
b. The applicant’s request to remove BFI Constructors Ltd. and Construction Opportunities Development Council Inc. as respondents is granted. The style of cause shall be amended accordingly.
16Since the parties have all agreed to mediation, the Tribunal will schedule a mediation in this case.
Dated at Toronto, this 30h day of August, 2017.
“Signed By”
Jo-Anne Pickel
Vice-chair