Pando v. Colleges of Applied Arts and Technology Pension Plan, 2009 HRTO 1190

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Pando

Applicant

-and-

Colleges of Applied Arts and Technology Pension Plan, Phil Cunnington, Paul Owens and Daniel Hayhurst

Respondents

AND B E T W E E N:

Robert Pando

Applicant

-and-

Colleges of Applied Arts and Technology Pension Plan, Phil Cunnington, Paul Owens and Daniel Hayhurst

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin Date: July 31, 2009 Citation: 2009 HRTO 1190 Indexed as: Pando v. Colleges of Applied Arts and Technology Pension Plan

1These are two Applications made under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Tribunal File 2009-01513-I (the “section 34 Application”) is an Application filed on February 27, 2009, under section 34 of Part IV of the Code. Tribunal File T-0199-08 (the “transition Application”) is a complaint originally filed with the Ontario Human Rights Commission (“Commission”). This was brought before the Tribunal on September 8, 2008, through an Application made under section 53(3) of the Code (the “transition provisions”). The purpose of this Interim Decision is to address the applicant’s request to consolidate the two Applications, as well as providing directions on certain outstanding issues.

BACKGROUND

2The applicant receives a pension from the Colleges of Applied Arts and Technology Pension Plan (the “Plan”). The Applications arise from the applicant’s attempts to exercise his right to inspect certain documents maintained by the Plan pursuant to s. 29 of the Pension Benefits Act, R.S.O. 1990, c. P.8, as amended, in 2007 (the transition Application) and 2008 (the section 34 Application).

3On January 25, 2008, the applicant filed a complaint with the Commission alleging discrimination on the basis of disability in services arising from his attempt to inspect certain Plan documents in 2007. The applicant alleges that the respondents refused to provide him with three consecutive days to inspect the Plan documents and requested information regarding his disability in violation of the Code. This matter is now before the Tribunal as the transition Application.

4On January 19, 2009, the Tribunal issued an Interim Decision, 2009 HRTO 59, in the transition Application deferring the Application pending the conclusion of a proceeding at the Financial Services Tribunal.

5On February 27, 2009, the applicant filed the section 34 Application arising out of his attempt to inspect certain pension records in 2008. Among other things, the applicant alleges that he has been discriminated against on the basis of disability by the respondents’ refusal to provide him with two consecutive days at Niagara College in Welland to accommodate certain specified disabilities. In addition, the applicant alleges that he suffered reprisal because the respondents refused to accommodate him because he sought to defend his rights under the Code through the transition Application. The applicant seeks similar remedies to those requested and sought by way of amendment in the transition Application.

6At the time he filed his section 34 Application, the applicant requested that his transition Application proceed and be combined with the section 34 Application as the proceeding before the Financial Services Tribunal had been completed. In this respect, he stated that he had been advised by the Registrar of the Financial Services Tribunal that the request for hearing was withdrawn by the Board of Trustees. In support of his request to combine the Applications, the applicant stated that the section 34 Application related to complaints of discrimination by the same respondents as named in the transition Application and was based on similar circumstances and therefore the applications should be “combine[d]”.

7On June 3, 2009, the respondents filed their Response to the section 34 Application along with submissions regarding the request to consolidate. Among other things, the respondents deny the allegations and submit that the allegations are part of the applicant’s ongoing campaign to achieve a collateral purpose which includes his withdrawal from the Plan. As with their position in the transition Application, the respondents reiterate their arguments that there is no reasonable basis to include the individual respondents as parties. In response to the request to consolidate, the respondents urge the Tribunal not to consolidate or hear together for a number of reasons including that the Applications seek disparate relief; the allegations arise out of different factual circumstances and distinct timeframes; and that hearing the applications together will prejudice the respondents.

8The respondent does not take issue with the applicant’s request that the transition Application now proceed given the status of the proceeding at the Financial Services Tribunal.

9On June 16, 2009, the applicant filed a Reply to the Response. The applicant maintains that the individual respondents are proper parties and submits that certain paragraphs in the Response setting out his historical dealings with the Plan should be struck.

CONSOLIDATION

10Based on the parties’ submissions and the conclusion of the proceeding at the Financial Services Tribunal, I see no reason why the transition Application should not now proceed. Further, I have decided that pursuant to Rule 1.7(d) it would be fair, just and expeditious to hear the transition Application together with the section 34 Application.

11The Applications involve the same parties and are at a similar stage of proceeding. While there are some differences in the factual circumstances giving rise to each Application, I find that the facts and issues are sufficiently similar to justify hearing them together. While pertaining to different years and involving somewhat different factual circumstances, each Application alleges that the respondents failed to accommodate the applicant when he sought to inspect certain Plan documents. Further, the fact that the section 34 Application alleges a reprisal resulting from the applicant’s filing of the transition Application provides an additional reason for consolidation.

12The respondents have argued that should the Tribunal grant consolidation, the Tribunal will effectively grant the applicant an amendment of his transition Application to include the additional relief sought since the section 34 Application includes the more expansive list of remedies now being sought in the transition Application. This is not an inevitable consequence of consolidation and the question of whether it is appropriate to permit the applicant to amend his transition Application to include certain additional remedies will be dealt with on the merits of the issue.

13Further, in opposing consolidation the respondents submit that hearing the Applications together would be prejudicial since the respondents would be forced to respond to “two accusations simultaneously” and allegations from 2007 may be used to bolster allegations from 2008. I have considered the respondents’ submissions but fail to see how consolidation will prejudice them in the manner described. Even without consolidation, the respondents would be responding to two applications; the fact of hearing together merely results in the parties dealing with them in one proceeding as opposed to two. Further, it should go without saying that the applicant will be required to prove each allegation made.

14Therefore, the Applications will be heard together. The Applications will be processed under the Rules of Procedure governing Applications under the Human Rights Code, Part IV. Further, any future communications in these Applications should be addressed solely to the Registrar and not the Registrar-Transition.

15It should be noted that the transitional Rules do not expressly provide for the filing of a reply. The applicant may file a reply to the Response filed in the transition Application within 14 days of the date of this Interim Decision. However, the applicant is specifically directed to only address those new matters that are raised in the Response which have not already been responded to by the applicant in the materials he has already filed with the Tribunal in connection with the transition Application.

REQUEST TO REMOVE INDIVIDUAL RESPONDENTS

16In the Responses to both Applications, the respondents submit that there is no reasonable basis for the inclusion of the individual respondents as parties. In the applicant’s Reply to the section 34 Application, the applicant addressed the submissions of the respondents and opposed the respondents’ position.

17I find that it is appropriate to consider the respondents’ submissions in their Responses as a request to remove the individual respondents as parties to these Applications.

18If any party has any further submissions they wish the Tribunal to consider in connection with the request to remove the individual respondents as parties to these Applications, it should file its submissions within 14 days of the date of this Interim Decision. In their submissions, the parties may wish to include the reasons for their request or opposition to the request; any facts and documents relied on; and provide any other submissions including any authorities relied on. In this respect, the parties may wish to have regard to the Tribunal’s jurisprudence (See for example Persaud v. Toronto District School Board, 2008 HRTO 31).

19The Tribunal will determine if it can decide the request based on the material filed or whether further submissions may be required.

OTHER OUTSTANDING ISSUES

20There are other outstanding issues raised in the Applications including the applicant’s request to amend the transition Application; the applicant’s request to seek additional remedies in the transition Application; the applicant’s request that certain paragraphs of the respondents’ Response to the section 34 Application be struck; and the applicant’s request for production of certain documents.

21Any production issues will be determined once the parties have completed their disclosure obligations pursuant to the Tribunal’s Rules. Should there be any issues in dispute following the disclosure required by the Rules, a party may file a Request for Order During Proceeding regarding any dispute.

22The remaining issues need not be dealt with prior to the parties fulfilling their obligations under Rules 16 and 17.

23I am not seized.