Khaiter v. York University Faculty Association, 2008 HRTO 80

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

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: September 23, 2008

Citation: 2008 HRTO 80

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

Introduction

1This is an Application filed under section 53(3) of the Part IV of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”) on July 25, 2008. The purpose of this interim decision is address the adjournment request made by the respondents on September 12, 2008, the matters raised by the applicant in his letter of September 14, 2008, and to issue case management directions.

Background

2By letter dated August 1, 2008, the Tribunal scheduled a mediation for October 1, 2008, on a peremptory basis. The parties were advised the mediation date would only be changed for important reasons. A location was not provided for the mediation. On August 18, 2008 the Tribunal set the location for the mediation.

3The respondents filed a response to the Application on August 8, 2008 declining to participate in the scheduled mediation and requesting that the Tribunal dismiss the Application on the basis that:

• the Application does not raise any human rights issues and is outside the Tribunal’s jurisdiction; and/or
• the Application is frivolous, vexatious and made in bad faith; and/or
• the Ontario Labour Relations Board has appropriately dealt with the complaint in six previously Applications made to that Board.

4Section 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 a mediation process 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)

5In 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.

6In this case, having regard to the nature of the preliminary requests, by letter dated August 18, 2008, the Tribunal Registrar advised the parties that the mediation scheduled for October 1, 2008 would be converted into a case resolution conference to hear oral submissions with respect to the respondents’ request to dismiss the Application on the above bases. I note that on August 18, 2008 the Tribunal also issued a letter confirming the location of the mediation on October 1, 2008. The applicant notes that these two letters are apparently contradictory and seeks clarification. The Tribunal states that the letter confirming the location of the mediation has been superseded by the Tribunal’s letter converting the mediation to a case resolution conference.

7The applicant was directed to deliver a response, if any, to the request to dismiss by September 15, 2008. The respondents were directed to deliver their reply, if any, within five days of receipt of the applicant’s response. The applicant filed a response on September 14, 2008, raising several matters which will addressed below.

Respondents’ Request for an Adjournment

8By fax received September 12, 2008, the respondents requested an adjournment of the case resolution conference scheduled for October 1, 2008 on the basis that counsel was not available to attend on that date because a hearing scheduled the previous March, which he had hoped would settle, would be proceeding that day. Counsel submitted that it would be onerous to instruct another counsel within his firm to take over the matter and advised that the personal respondent Arthur Hilliker was also not available on October 1, 2008 but no reason was supplied. The respondents identified several dates in October, November and December 2008 when they would be available.

9The applicant was asked to advise the Tribunal whether he was available on the alternative dates and to identify any prejudice he would suffer if the October 1, 2008 date were adjourned. The applicant opposed the adjournment request but did not identify any prejudice arising from an adjournment. In addition, the applicant identified two days which corresponded with the dates offered by the respondents: October 3 and October 15, 2008.

10The respondents’ request for an adjournment is granted and the case resolution conference will be adjourned from October 1, 2008 to October 15, 2008. In light of the complexity of the issues raised by the parties, this case resolution conference will be held from 9.30 to 4.30

Applicant’s letter of September 14, 2008

11As stated above, on September 14, 2008 the applicant filed written submissions as requested by the Registrar in response to the respondents’ request to dismiss his Application. In his submission, the applicant raised various matters including:

• a challenge to the Tribunal’s authority to convert the mediation to a case resolution;
• an objection that the respondents’ did not personally sign the Form B response form (it was signed by counsel) and therefore there is no valid and timely response by any respondent before the Tribunal;
• a request that the Tribunal deem the respondents to have accepted all of the allegations in the application and proceed with the Application without further notice to the respondents, on the basis of the respondents’ failure to file a valid and timely response;
• a dismissal of the respondents’ request to dismiss on the basis that it was improperly made under Rule 13 of the Part IV Rules and Form 10 of those Rules;

12The Tribunal is satisfied the applicant’s arguments as set out above and further detailed in his letter of September 14, 2008 can be dealt with at the case resolution conference scheduled for October 15, 2008. Paragraph 15 below contains the Tribunal’s orders for the conduct of the case resolution conference and hearing of these issues.

Applicant’s Request to Add Parties

13In his submissions of September 14, 2008 the applicant sought to add the Chair of the Ontario Labour Relations Board, a Vice-Chair of the Ontario Labour Relations Board and the Ombudsman of Ontario as respondents to this Application.

14The Tribunal will not address the applicant’s request to add additional parties at the case resolution conference scheduled for October 15, 2008. The Tribunal will issue further directions on that matter at the appropriate stage.

Case Management Directions

15Having regard to the detailed documentation and written submissions filed by the parties, the Tribunal issues the following case management directions for the case resolution conference now scheduled for October 15, 2008:

• The applicant shall have up to 30 minutes to make oral submissions on whether the requests by the respondents to dismiss his Application should be heard and determined at this point in time.
• The respondents shall have up to 30 minutes to reply to the applicant’s submissions on item 1.
• The applicant shall have up to 10 minutes to reply to the respondents’ submissions on item 2.
• The Tribunal member will determine whether or not to hear the merits of the respondents’ request to dismiss and, if the request will proceed on the merits, the respondents shall have up to 60 minutes to make submissions on the merits of the request.
• The applicant shall have up to 60 minutes to respond to the respondent’s submissions on the merits of the request to dismiss.
• The respondent shall have up to 30 minutes for reply.

16The case resolution conference will proceed on October 15, 2008 from 9.30 to 4.30 at 655 Bay Street, 14th Floor, Toronto, Ontario.