A day before, another judge denies leave to the same proposed intervenors
In two endorsements published a day apart, two Ontario Divisional Court judges refused and granted permission to intervene in a challenge to two Ontario Human Rights Tribunal decisions involving the same parties and proposed intervenors in proceedings involving alleged discrimination.
A York University employee filed an application with the Human Rights Tribunal of Ontario (HRTO) on Apr. 13, 2019. Under Ontario’s Human Rights Code, 1990, she alleged that York discriminated against her and harassed her based on race, colour, ancestry, origin, and ethnicity from April 2015 to 2019. She added that she faced reprisal upon raising concerns.
The employee also alleged discriminatory acts on the part of an independent third-party investigator retained by York to investigate her concerns under the Code.
In an interim decision dated Mar. 18, 2025, the HRTO dismissed almost all the employee’s claims as barred by the Code’s one-year limitation period. The HRTO ordered the remaining issues – York’s vicarious liability for the investigator’s alleged discriminatory acts and its duty to investigate the employee’s concerns – to proceed toward a hearing on the merits.
On Apr. 17, the employee requested reconsideration. On May 16, the HRTO rejected the request.
The employee applied for judicial review of the HRTO decisions rejecting most of her claims and refusing reconsideration. She raised the issue of whether the HRTO had reasonably dismissed most of her claims for being out of time.
The York University Staff Association (YUSA) and the Black Legal Action Centre (BLAC) moved for leave to intervene in the judicial review application.
YUSA, the employee’s trade union, cited r. 13.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194.
BLAC, a legal aid clinic funded by Legal Aid Ontario, wanted to intervene as a friend of the court under r. 13.02 of the Rules. It alleged that it had knowledge of issues of race and anti-Black racism and a special interest in ensuring that the law sufficiently protected Black Ontarians’ fundamental rights and meaningfully considered anti-Black racism’s impacts.
The employee consented to the proposed intervenors’ request, while York opposed it.
On Nov. 20, in Dosu v. Human Rights Tribunal of Ontario, 2025 ONSC 6496, Justice Sharon Shore dismissed the motions for leave to intervene.
In Divisional Court file no. DC-25-00000489-00JR, Shore ruled that YUSA failed to meet the test’s first part for addition as a party. She added that YUSA had no interest in the subject matter and faced no risk of adverse effects from a judgment in the proceedings.
Given that YUSA’s motion failed at the first stage, Shore saw no need to address the test’s second part of whether the intervention would unduly delay or prejudice the determination of the parties’ rights.
Next, Shore held that BLAC would not assist the court and could not offer an opinion regarding the limitation period distinct from the parties’ perspectives.
Shore said she shared York’s concerns that permitting BLAC to intervene would introduce arguments on irrelevant peripheral issues and thus increase confusion.
On Nov. 21, in Dosu v. Human Rights of Ontario, 2025 ONSC 6509, Justice Shaun S. Nakatsuru of the Divisional Court granted the motions for leave to intervene.
In Divisional Court file no. 101/25; 093/25, Nakatsuru determined that both intervenors met the test for intervention upon applying appropriate conditions. He ordered the intervenors to refrain from filing additional evidence and instead rely on the existing record.
Nakatsuru accepted that York might ultimately be correct. However, he ruled that YUSA had a significant interest in the issues raised and a right to be heard in the circumstances. He added that YUSA, which faced a potential risk to its interests, would not unduly delay the case or prejudice the parties.
Nakatsuru noted that an intervenor added as a party in an originating proceeding could expect to continue as an added party on appeal, unless intervening events or exceptional circumstances supported ceasing its intervention.
Nakatsuru pointed out that YUSA received intervenor status before the HRTO, with the adjudicator to decide the extent of its participation. Nakatsuru saw no intervening events or exceptional circumstances that would warrant refraining from adding YUSA as a party to the judicial review application.
Next, Nakatsuru held that BLAC could usefully contribute to the application hearing as a friend of the court due to its distinctive role of offering a systemic lens to the issues raised in the judicial review application.
Nakatsuru added that BLAC was in a position to help the court tackle the intersectional nature of discrimination encountered by Black individuals, an issue linked with those that the employee had engaged.
Nakatsuru noted that BLAC expressed concerns that a potential interpretation of the HRTO decisions could suggest a requirement that an employee should first raise discrimination claims with their employer before the establishment of liability.
BLAC alleged that this possible interpretation would directly and significantly affect Black persons apart from the employee in this case and could lead to systemic consequences.
Nakatsuru acknowledged BLAC as a renowned organization with a public mandate, special knowledge representing its broad membership, experience in prior judicial interventions, and a unique perspective.
Nakatsuru concluded that BLAC’s participation would not expand the judicial review application, result in delay, or complicate the hearing.
