Persad v. Toronto Transit Commission, 2008 HRTO 136

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kris Persad Applicant

-and-

The Toronto Transit Commission, David Dixon, Orest Romaniuk and Jim Bebell Respondents

AND B E T W E E N:

Kris Persad Applicant

-and-

Amalgamated Transit Union Local 113, Kevin Morton, Henry Urban, and Sam Graham Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim Date: October 9, 2008 Citation: 2008 HRTO 136 Indexed as: Persad v. Toronto Transit Commission

Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto, ON M7A 2A3 Phone (416) 314-8419 / Fax (416) 314-8743 / Toll free 1-866-598-0322 TTY (416) 314-2379 / (toll free) 1-800-424-1168 E-mail hrto.registrar-transition@ontario.ca Website www.hrto.ca

1These two Applications were filed August 26 and 28, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application against the Amalgamated Transit Union (the Union) and Morton, Urban, and Graham has been assigned File No. T-0130-08. The Application against the Toronto Transit Commission (the Employer), Dixon, Romaniuk and Bebell has been assigned File No. T-0129-08. The Tribunal set a mediation date of November 7, 2008 on both Applications.

2The Union filed its response on September 22, 2008. The Employer and personal respondents Dixon and Bebell filed their response on October 3, 2008.

FAILURE TO SERVE CERTAIN PERSONAL RESPONDENTS

3The applicant served the respondent Orest Romaniuk by leaving a copy of the Application for him at the Employer's premises. The Employer has advised both the applicant and the Tribunal that Mr. Romaniuk has not worked for it for many years, they have not been able to locate him, and that they cannot accept service on his behalf.

4The applicant served Messers Morton, Urban, and Graham at the Union's premises. The Union advised the applicant and the Tribunal that two of the personal respondents, Urban and Graham, were retired and the Union could not accept service on their behalf. While the Union did not make a similar claim with respect to Mr. Morton, it takes the position Mr. Morton was not properly served.

5It is the obligation of the applicant to serve all respondents with the Application (Form A). The Tribunal is not satisfied the personal respondents Romaniuk, Urban and Graham have been properly served. The applicant has 30 days from the date of this decision to serve these respondents with the complete Application (Form A) and file a Form C with the Tribunal or the Tribunal will consider whether to remove these three personal respondents as parties to these proceedings.

6The Union is directed to provide the applicant with the last known addresses for Urban and Graham within five days of the date of this decision. The Employer is directed to provide the Application with the last known address for Romaniuk.

7With respect to personal respondent Morton, the Union names him as its contact person in the Response (Form B) and provides an address for him which is identical to the address at which the applicant served him. Accordingly, I am satisfied that Mr. Morton has been properly served and received notice of these proceedings. If, in his capacity as a personal respondent, Mr. Morton wishes to be served with materials at a different address, email or facsimile number, he is directed to advise the Tribunal and the parties within 5 days of the date of this decision as to his preferred contact information. The Union is also directed to advise the Tribunal and the parties whether or not they represent Mr. Morton in his capacity as a personal respondent.

APPLICATIONS TO PROCEED TOGETHER

8These Applications relate to the applicant's employment with the Toronto Transit Commission and the Union's alleged failure to properly process his grievances. The allegations set out in both Applications are virtually identical.

9These Applications, although made against separate parties, involve similar facts and the same workplace. Accordingly, I find, pursuant to Rules 1.1, 4.1 and 4.3 (m), that in order to ensure a fair, just and highly expeditious process for their resolution, both Applications should proceed together at this stage.

10The parties are directed to deliver all future correspondence, documents and submissions to all the above named parties for whom contact information is available.

REQUEST TO DISMISS THE APPLICATIONS

11On September 23, 2008, counsel for the Union requested that mediation be deferred until after the Tribunal considered and determined certain preliminary matters. The Union submits the Application against it ought to be dismissed on the basis of:

• delay;
• that it is more appropriately dealt with under an Act other than the Ontario Human Rights Code;
• is vexatious, made in bad faith and constitutes an abuse of process; and/or
• the applicant has raised the same issues against the union before the Ontario Labour Relations Board;

12On October 3, 2008 the Employer and the personal respondents Dixon and Bebell filed a Response requesting that the Tribunal hear its preliminary objections prior to mediation. They requested that the personal respondent Dixon be removed as a respondent because the facts alleged in the Application do not amount to a breach of the Code. They also submit that the Application is untimely and that the Ontario Labour Relations Board has made findings of fact which should bind the Tribunal.

13Section 53(4) of the Code required the Tribunal to establish rules to determine section 53(3) applications expeditiously. In accordance with this statutory mandate, the Tribunal developed a process whereby it was expected that the first step in a section 53(3) application would be mediation at an early date. If mediation were unsuccessful, the mediator would also assist the parties to complete a mediation checklist to assist in the processing of the application for hearing at a case resolution conference. This process is set out in the Tribunal's Guide to Section 53(3) applications and the Rules of Procedure for applications under Section 53(3) of the Human Rights Code (Rule 8).

14In this context the expectation is that most section 53(3) applications will be scheduled for mediation prior to the hearing and determination of preliminary matters. However, the Tribunal retains the discretion to control its process and will hear preliminary requests prior to the mediation in appropriate circumstances. Rule 4.1 provides that the Tribunal may exercise any of its powers under these Rules on its own initiative. Rule 4.3(d) provides that the Tribunal may determine and direct the order in which issues in a proceeding will be considered and determined.

15The Tribunal notes that the wording of the Union's submission reflects the language found in section 34 of the old Part IV of the Code, which is no longer in effect. However, the Tribunal retains the discretion to prevent an abuse of its process, and also has the discretion, pursuant to section 45.1 of the Code, to dismiss an application if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application. In addition, Rule 4.2 permits the Tribunal to dismiss an application that is outside the jurisdiction of the Tribunal.

16In this case, I find that it appropriate to address the respondents' preliminary objections prior to mediation. Accordingly, the mediation scheduled for November 7, 2008 is cancelled.

17The respondents are directed to file their submissions with respect to their requests for early dismissal of the Applications within 30 days of this decision.

18The applicant is directed to file his submissions, if any, to the respondents' submissions within 30 days of receipt of the respondents' submissions.

19The respondents are directed to file their reply, if any, to the applicant's submissions within five days of receipt of the applicant's submissions.

20These timelines may be extended if the personal respondents Romaniuk, Urban and Graham are served and request extensions.

21The Tribunal will contact the parties to confirm a date for the case resolution conference to hear the oral submissions of the parties on the matters set out above.

22I am not seized.