Khaiter v. York University Faculty Association, 2008 HRTO 241

Human Rights Tribunal of Ontario

B E T W E E N:

Peter A. Khaiter Applicant

-and-

York University Faculty Association, Arthur Hilliker, Brenda Hart, and Catherine Lace Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Kaye Joachim Date: November 7, 2008 Citation: 2008 HRTO 241 Indexed as: Khaiter v. York University Faculty Association

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

Appearances

Peter Khaiter, Applicant ) On His Own Behalf York University Faculty Association, Arthur Hilliker, Brenda Hart, and Catherine Lace, Respondents ) James K. McDonald, Counsel

Introduction

1This is an Application filed under section 53(3) of the Part VI of the Human Rights Code, R.S.O. 1990, and c. H. 19, as amended (the "Code") on July 25, 2008.

2The respondents seek dismissal of the Application on the grounds that the applicant has not set out a factual basis that could give rise to a finding of discrimination on a prohibited ground under the Code. The respondents also argue the Application should be dismissed on the basis of section 45.1 and because it is frivolous, vexatious and made in bad faith. It is not necessary to deal with the latter two arguments in light of my decision.

3The respondents' request was heard on October 15, 2008 and all parties were given an opportunity to make oral submissions. For the reasons set out below, the Application is dismissed.

The Application

4The applicant, Dr. Peter Khaiter, was appointed to a tenure stream position in the Information Technology Program, School of Analytic Studies and Information Technology, Atkinson Faculty of Liberal and Professional Studies, York University (the University") in September 2000.

5The respondent, York University Faculty Association ("YUFA"), is a trade union certified under the Ontario Labour Relations Act, 1995, S.O. 1995, c. L-4, as amended ("LRA"). YUFA represents faculty members and librarians at the University and is a party to a collective agreement with the University. The respondent, Arthur Hilliker, is the elected President of YUFA. The respondent, Brenda Hart, is an Executive Associate with YUFA, and the respondent, Cathy Lace, is a partner with Sack Goldbatt Mitchell, the law firm which represents YUFA.

6The applicant alleges he was subjected to employment related discrimination and harassment by the University on the basis of ancestry and place of origin. The respondents failed to file and pursue grievances against the University on his behalf. The applicant asserts that this amounts to discrimination by the trade union with respect to employment, contrary to section 5 of the Code and with respect to membership in a vocational association, contrary to section 6 of the Code.

Representation

7The applicant attended the case resolution conference, with a lawyer. I understood counsel represented the applicant although, at various times during the proceeding, the applicant chose to make his own submissions. After the hearing, the applicant wrote to the Tribunal advising that counsel had not been authorized to represent him, but was merely "present" with him. For these reasons, counsel is not identified on the appearances.

Applicant's Bias Motion

8At the start of the case resolution conference, the applicant asked that I decline to hear the respondents' request on the basis of a reasonable apprehension of bias. The applicant noted that I served as a Vice-Chair of the Ontario Labour Relations Board from 1993 to 1996 and the present request to dismiss the Application relies upon several decisions of the Ontario Labour Relations Board.

9It is the practice of the courts and tribunals for the respective judge or adjudicator against whom the claim of bias is alleged to address any allegation of bias or reasonable apprehension of bias. This is confirmed by the Tribunal's Code of Conduct, in sections 30, 33 and 34. In accordance with that practice, I heard the applicant's brief submission, and provided an oral ruling dismissing the bias allegations with reasons to follow. These are my reasons.

10The test for apprehension of bias requires me to consider "what would an informed person, viewing the matter realistically and practically—conclude?" The grounds for the apprehension must be "substantial" and the test is not related to a "very sensitive or scrupulous conscience": Committee for Justice and Liberty v. Canada (National Energy Board) [1978] 1. S.C.R. 369. Moreover, if motions for recusal are allowed too readily on insubstantial grounds, parties to proceedings will be provided with a potentially powerful instrument for engaging in adjudicator shopping and delaying proceedings, and more generally, the law's grip on practical realities will be loosened: Toneguzzo v. Kimberly-Clark Inc. 2005 HRTO 9 at para 30.

11In my view, the fact that I served as a Vice Chair on the Ontario Labour Relations Board over 10 years ago does not give rise to a reasonable apprehension I would be biased in favour of the respondents because their request to dismiss is based, in part, on decisions of the Ontario Labour Relations Board.

Objections to the Request for Early Dismissal

12The applicant raised several objections to the Tribunal's authority to hear the respondents' request for early dismissal, including:

a. the respondents did not personally sign the Form B Response and therefore there is no valid and timely response or request to dismiss by any respondent before the Tribunal;

b. the respondents' request for early dismissal was made improperly by relying on the Tribunal's Rules governing Part IV Applications rather than the Tribunal's Rules for section 53(3) applications;

c. the Tribunal lacks the jurisdiction to dismiss an application at this stage; and

d. the Registrar has no authority to issue a notice of case resolution conference at this stage of the proceedings.

The Form of the Request

13Rule 3.5 of the Tribunal's Section 53(3) Rules provides that "a technical defect or irregularity is not a breach of these Rules." In my view, that provision is sufficient to dispose of the applicant's objection to the counsel signing the Form B Response and the request not to hear the respondents' request because it was made under the Part IV Rules and Forms.

14The applicant was aware of the nature of the respondents' request to dismiss his Application, was given an opportunity to make oral submissions and did not suffer any prejudice from these technical irregularities.

Tribunal's Jurisdiction to Dismiss

15The applicant submitted the Tribunal had no authority to consider dismissing an application within its jurisdiction without first scheduling mediation (rule 8), permitting the filing of additional statements of facts and disclosure by both parties (Rule 9), and holding a case resolution conference on the merits of the Application (Rule 9). Entertaining a request for early dismissal on grounds other than jurisdiction would not be "fair, just or highly expeditious" (Rule 1.1 and section 53(4) ).

16I do not agree that the Code or the Section 53(3) Rules prohibit the Tribunal from dismissing an Application until mediation, pleadings and disclosure and a case resolution on the merits of the Application has been held. Section 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 most section 53(3) Applications would be mediation (Rule 8), followed by disclosure and the filing of further statements of facts, if required (Rule 9), followed by a case resolution conference to determine the merits of the Application (Rule 9).

17However, the Tribunal retains the discretion to control its own process and to hear requests to dismiss an Application at any stage of its proceedings if it is fair, just and expeditious in the circumstances. The Rules confirm this. Rule 4.1 provides that the Tribunal may exercise any of its powers under these Rules on its own initiative; Rule 4.3(c) provides that the Tribunal may vary the application of these Rules at any time 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; and Rule 4.3(m) provides that the Tribunal may take any other action that the Tribunal determines is appropriate.

18In my view the circumstances of this case justify the exercise of my discretion to hear the issues raised by the respondents at this stage of the proceedings and that to proceed in this manner is consistent with a fair, just and highly expeditious process.

19There is no dispute this Application is within the Tribunal's jurisdiction to decide. As such, it may be dismissed if two conditions are met: the applicant is given an opportunity to make oral submissions before the application is finally disposed of (section 43(2)1) and the Tribunal issues written reasons for the final disposition (section 43(2)2). The Applicant was provided with and participated in making oral submissions to the Tribunal. This decision provides the Tribunal's written reasons for its decision to dismiss. The requirements of the Code and the Tribunal's Rules are met. The decision to hear and decide the request for early dismissal is properly within the Tribunal's authority.

Registrar's Notice

20Finally, the applicant objected to the fact that the Registrar's letter of August 18, 2008 advised the parties that the date scheduled for mediation would instead be used for a case resolution conference. The applicant questioned the authority of the Registrar to schedule a case resolution conference as the first step in the proceeding. It is unnecessary to deal with this objection, as the revised date and purpose of the case resolution conference was reconfirmed in the Tribunal's interim decision of September 23, 2008 (2008 HRTO 80).

Request to make Additional Submissions

21During the course of submissions, the respondents referred to case law not referenced in their written submissions. I note that the Tribunal's direction to the parties to make written submissions did not specify that all applicable case law should be provided in advance of the case resolution conference and that such a direction is not usually made. However, it may be that such directions are particularly useful in situations where a party is self-represented.

22In light of the fact the applicant was not a lawyer expected to be familiar with the common practice of being required to respond to case law introduced at a hearing, I decided that it would be fair and just to offer the applicant an opportunity to make further written submissions in response to the case law. I specifically directed the applicant to restrict his written submissions to responding to the case law.

23The applicant disregarded my express directions and instead filed written submissions comprising 96 paragraphs reiterating his oral submissions at the hearing, only one of which made any reference to any case law submitted by the respondents. In addition, in paragraphs 44 to 63 the applicant raised events post-dating the original complaint, and which were not addressed by any party at the case resolution conference. In the circumstances these will not be considered for the purpose of this decision.

Background to the Application

24On November 17, 2003 the applicant notified the University that he was filing a grievance with the support of YUFA in respect of alleged harassment and discrimination by his departmental Dean. On February 12, 2004 the applicant provided detailed particulars of the alleged discrimination and harassment. In 2004, a Dispute Resolution Committee was convened in accordance with article 9.08 of the Collective Agreement to address this grievance. Those proceedings were adjourned indefinitely, as a result of the applicant's health condition.

25In August 2005, the President of the University advised the applicant that his application for tenure and promotion would be delayed until the following year. In March 2006, the applicant filed a grievance, with YUFA's support, regarding the President's decision to delay the applicant's Candidacy 2 tenure and promotion application (the "tenure and promotion grievance").

26In September 2006, the applicant went on sick leave. In October 2006, the applicant was apparently asked by the University to provide medical documentation to support his leave, and was allegedly advised that the University was intending to proceed with the Candidacy 3 tenure and promotion process. The applicant sought the assistance of YUFA, and YUFA asked the University to suspend the tenure and promotion process while the applicant was on sick leave.

27The applicant advised the University in December 2006 that he considered himself fit to resume his work duties. The University was apparently not satisfied with the documentation he provided supporting his fitness to return to work and requested an independent medical evaluation.

28In January 2007, the applicant wrote to YUFA's President asking for YUFA's assistance in managing his relationship with his employer. Specifically, the applicant asked YUFA to file numerous grievances relating to various issues including the alleged ongoing harassment and discrimination stemming back to 2003, the tenure and promotion grievance, the employer's attempt to initiate the tenure and grievance process while the applicant was on sick leave, the employer's request for an independent medical evaluation, and other matters. In January 2007, the applicant met with respondents Hart and Lace to discuss the potential grievances. YUFA did not file any new grievances following that meeting.

29In March 2007 and May 2007, the applicant filed six applications with the Ontario Labour Relations Board (the "OLRB") alleging that YUFA had breached section 74 of the LRA by dealing with him in a manner that was arbitrary, discriminatory and in bad faith.

30In a decision dated September 12, 2007, the OLRB dismissed the six applications on the basis that the applicant had not made out a prima facie case of a breach of section 74 of the LRA. It is important to note that the applicant filed numerous documents in support of his application before the OLRB which set out in detail his communications with the respondents and the factual background giving rise to his complaint of arbitrary, discriminatory and bad faith treatment. The applicant sought reconsideration of the decision, which was denied on March 6, 2008.

31In April 2008, the applicant filed two more duty of fair representation applications with the OLRB. The seventh application focused on YUFA's handling of his tenure and promotion grievance which is currently at the arbitration stage. His eighth duty of fair representation application raised issues related to more recent concerns about YUFA. In a decision dated May 14, 2008, the OLRB deferred the processing of the applicant's seventh and eighth duty of fair representation applications until after the scheduled tenure and promotion arbitration proceeding. The applicant's request for reconsideration of the decision to defer his seventh and eighth duty of fair representation applications was denied on September 25, 2008.

32The applicant filed the complaint underlying the present Application with the Commission on June 26, 2008, and subsequently abandoned that complaint in accordance with Part VI of the Code and filed a section 53(3) Application to the Tribunal.

Request to Amend the Application

33The essence of the Application is that, since March 2003, the respondents have failed to effectively stop the employer's discrimination, because they failed to pursue the numerous grievances suggested by the applicant. The Application comprises two pages of vague allegations relating to the respondents' alleged failure to appropriately represent the applicant. There is no mention of the applicant's place of origin or ancestry or connection made between the respondents' allegedly inappropriate or insufficient representation and discrimination based on ancestry or place of origin.

34If I were to consider the Application alone, without any further context, I would have no hesitation in finding it does not disclose a prima facie case of discrimination on the basis of ancestry or place of origin against the respondents with respect to his membership in a trade union or with respect to employment.

35However, the applicant sought leave to amend his Application to address apparent deficiencies in his original complaint by clarifying that he is a first generation immigrant from Russia and that English is not his mother tongue. He further sought to rely upon two documents (exhibits 5 and 6) to clarify his Application.

36The Tribunal will not dismiss an application at an early stage for failure to set out a prima facie case, unless it is satisfied that the applicant has been given a reasonable opportunity to set out the facts upon which he relies and to fully explain how those facts could give rise to a breach of the Code. In my view, it is fair and just to permit the applicant to amend the Application to clarify his ancestry and place of origin as stated above.

37The applicant also sought to amend his Application to clarify that he believes that the University failed to take into account his non-Canadian work experience and that his English-language skills had been inappropriately considered by the employer during his tenure and promotion assessment. The respondents did not dispute that the applicant had raised the above allegations with them. In fact, the respondents assert that they are putting forward that very argument on the applicant's behalf in the pending arbitration proceeding. In the circumstances, I find that it is appropriate to amend the subject matter of the Application to include the above allegation, as clarified by exhibit 5.

38The applicant also sought to amend the Application to include the allegation that he experienced discrimination and harassment by University because of his non-Canadian work experience and his English language skills from 2003 to the date of the complaint (June 2008) and that he sought the assistance of the respondents to initiate and pursue grievances on his behalf. The respondents agree the applicant has complained since 2003 of "discrimination and harassment", but deny that the applicant provided any particulars or related any of the alleged harassment and discrimination to his place of origin or language skills (except with respect to the tenure and promotion process, described above). I am satisfied that it would be fair and just in the circumstances to permit the applicant to amend the Application to add the clarification above, as explained by exhibit 6.

39The applicant also sought to amend the Application to include the allegation that other employees sharing his ancestry and place of origin are also being mistreated by the employer which creates a clear pattern of discrimination. I am not satisfied that it would be fair and just to permit the above amendment to the Application. The original complaint which forms the subject matter of this Application alleges discrimination against the applicant personally and does not raise any suggestion of systemic discrimination against persons similarly situated. It would not be appropriate to expand the scope of the Application to include allegations of systemic discrimination at this stage in light of the fact that Section 53(3) applications must relate to the subject-matter of the original Commission complaint and in light of the "highly expeditious" nature of section 53(3) applications.

Does the Amended Application Disclose a Breach of the Code?

40I have carefully considered the applicant's original complaint which underlies the present Application, the amendments described above, exhibits 5 and 6 introduced by the applicant to further clarify his Application, and the applicant's eight prior duty of fair representation applications (exhibit 2) in which he sets out in some detail his concerns about the respondents' representation.

41I am satisfied that the Application does not set out a factual basis that could give rise to a finding that YUFA or the personal respondents represented the applicant differently based on his ancestry or place origin, contrary to section 6 of the Code. Until the amendment of the application on October 14, 2008, the applicant had not once in his dozens of emails to and about the respondents mention his ancestry or set out any facts that could suggest that the respondents represented the applicant differently because of ancestry or place of origin. Further, the applicant's amendments and exhibits 5 and 6 also do not set out any facts that suggest that the respondents represented the applicant differently because of his ancestry or place of origin.

42I am also satisfied that the Application does not set out a factual basis that could give rise to a finding that YUFA or the personal respondents, by failing to initiate or pursue grievances at the request of the applicant, contributed to, condoned, or became a party to the alleged employer discrimination on the basis of ancestry or place of origin, within the meaning of section 5 of the Code.

43In some circumstances, a trade union may be found to be a party to employment related discrimination under section 5 of the Code. However, in this case, the applicant has not set out any facts, other than the respondents' alleged failure to initiate or pursue his grievances alleging discrimination and harassment by the employer, that could give rise to such a finding.

44In the circumstances of this case, YUFA's decision not to support some of the applicant's requests to initiate or pursue grievances alleging employer discrimination and harassment on prohibited grounds under the Code, does not, in and of itself, make YUFA or the personal respondents a party to the University's alleged employment discrimination and harassment under the Code.

Opportunity to file additional statements of facts

45The applicant submitted that, if the Application as drafted did not disclose sufficient facts that could give rise to a finding that the respondents breached the Code, the applicant should be directed as to how to supply the missing information so as to maintain his Application.

46The applicant submitted that I should not consider his detailed duty of fair representation complaints as setting out the full extent of how the respondents discriminated against him on the basis of his Russian ancestry and place of origin, as he did not understand at the time he filed those complaints that the Ontario Labour Relations Board had jurisdiction to hear that kind of discrimination allegation. It is not clear what kind of "discrimination" complaint against the trade union the applicant believed the Ontario Labour Relations Board could hear, as he certainly alleged "discrimination" numerous times in his duty of fair representation complaints. In any event, and accepting the applicant's assertion at face value, I conclude that the applicant has been given, and has taken, every opportunity to expand upon his Application to clarify how the respondents have discriminated against him on the basis of his ancestry and place of origin. He requested, and was permitted, to amend the original complaint as described above. He was permitted to and did further clarify how the respondents' discriminated against him in exhibits 5 and 6.

47The Tribunal does not lightly accept requests for early dismissal and will not dismiss an application unless it is satisfied that the applicant has been given a full opportunity to set out the facts upon which he relies and fully explain how those facts could give rise to a breach of the Code. I am satisfied that the applicant has had that opportunity, and that the voluminous materials before me simply do not make out that case.

Order

48For the reasons set out above, the Application, as amended and clarified by the applicant, is dismissed.