Barbieri v. Hamilton-Wentworth District School Board, 2009 HRTO 12

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Santo Barbieri

Applicant

-and-

Hamilton-Wentworth District School Board,

Ron Mauro, John Horgan and Marg Bowman

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: January 6, 2009

Citation: 2009 HRTO 12

Indexed as: Barbieri v. Hamilton-Wentworth District School Board

AppearanceS BY

Santo Barbieri, Applicant ) On his own behalf

Hamilton Wentworth District School Board, ) George Leibbrandt,

Corporate Respondent ) Counsel )

Ron Mauro, John Horgan, Marg Bowman, ) George Leibbrandt,

Individual Respondents ) Counsel )

1This is an Application filed August 15, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondents take the position that parts of the Application should be dismissed because they are untimely within the meaning of section 34(1) of the Code and that some of the subject matter of the Application has been resolved through signed Minutes of Settlement and/or the passage of time. The respondents request, in the alternative, that this Application be deferred pending the outcome of an arbitration proceeding dealing with those parts of the subject matter of the Application which have not already been resolved.

3The parties were requested to provide written submissions and a one day case resolution conference was scheduled to deal with the issues raised by the respondents.

4Prior to hearing the parties’ submissions I canvassed with them whether any evidence would be required to deal with these preliminary issues. The parties agreed that no vive voce evidence would be required and were prepared to proceed on the basis of the written submissions and a limited number of documents which were marked as exhibits.

Background

5The human rights complaint (the “complaint”) forming the subject matter of this Application alleges a course of harassment of the applicant by the respondents going back to 2001, with the final event cited in the complaint occurring in March 2007. The applicant is a teacher and the respondents are a public school board and other employees of that board. The applicant is a member of a bargaining unit represented by a trade union. He has filed a number of grievances related to many of the events described in the complaint and Application. Several of these grievances have been concluded with Minutes of Settlement signed by the parties including, on at least one occasion, by the applicant himself. Other grievances are ongoing, or as suggested by the applicant will be filed, that are related to the issues in dispute in this Application. One of these grievances, dated September 19, 2007, is largely indistinguishable from the complaint and Application. That arbitration commenced in September 2008 and will reconvene in September 2009.

Deferral pending grievance arbitration

6The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and highly expeditious way of proceeding with the Application.

7As indicated above the facts and issues raised by this Application are part of a grievance process that began on September 25, 2008. The issues in the Application and the grievance arbitration are largely indistinguishable. The collective agreement between the respondent school board and the applicant’s bargaining agent includes a no discrimination clause incorporating by reference Code protections. The Labour Relations Act, 1995, S.O. 1995, c.1, as amended, s. 48(12)(j) provides that an arbitrator has jurisdiction to consider and apply Code provisions when determining a grievance under a collective agreement. Moreover, the arbitrator has not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound Social Services Administration Board v. O.P.S.E.U., Local 342, 2003 SCC 42).

8It is agreed that the facts and issues raised in the complaint and this Application are the same as the issues in the grievance arbitration. The applicant states, however, that while the issues are the same, the forum is different. The applicant submits that the Tribunal has an expertise in human rights that a labour arbitrator may lack. The applicant also states that his trade union has carriage of the grievance and can elect to not proceed with it while he has carriage of this Application. The applicant also states that the process under s. 53(3) is more expeditious than the grievance arbitration.

9The concerns raised by the applicant are not sufficient reason to depart from the Tribunal’s usual approach. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on the facts or the law. Deferral also avoids the prejudice to the parties, in particular respondents, in having to deal with the same or similar issues in two or more separate proceedings. The applicant chose to file a grievance that raised facts and issues indistinguishable from the complaint. The arbitration has commenced and should be allowed to conclude.

10For these reasons I am satisfied the arbitration proceeding should proceed to its conclusion before the Tribunal deals with the Application.

11Any party wishing to proceed further with this Application should do so within 60 days of the conclusion of the arbitration in writing to the Registrar-Transition.

Dismissal for Delay

12The respondents state that the events alleged to have occurred in 2001, 2003 and 2004 are raised too late to form part of the complaint and this Application and are unconnected so that they cannot be said to form part of a series of events culminating in the alleged events of March 2007 and consequently saved by s. 34(2) of the Code.

13This request to dismiss is rejected at this stage. Although the links between the alleged series of events is unclear, it is the case, as Mr. Barbieri stated at the case resolution conference that he has not had the opportunity to present his evidence. Mr. Barbieri’s theory of the case, at least in part, is that the events alleged are evidence of a pattern of harassing behaviour. At this stage of the proceeding I am not prepared to determine that these events cannot be seen as being part of a series of events constituting harassment.

14In light of the determination above that this Application be deferred pending the conclusion of the grievance arbitration, it is not known at this point what might remain of the Application. The respondents may wish to raise this issue again should the Application be re-opened when the issue can be determined in light of the facts and issues still remaining to be resolved.

Dismissal on Basis of Prior Settlements or Mootness

15The respondents also contend that several of these incidents alleged in the complaint and Application have been settled in prior grievance proceedings and that to refer to them now is an abuse of process and contrary to section 34(11) of the Code. As well it is said that the passage of time has rendered many of the allegations and remedies sought moot.

16These requests to dismiss elements of the complaint on the basis of alleged prior settlements or that they are moot as a result of the passage of time are also rejected at this stage. As indicated above, the applicant’s case, at least in part is that the respondents have engaged in a course of conduct over several years that constitutes harassment as defined in the Code. The respondent states that is an abuse of process to refer to prior events that have been resolved in a grievance arbitration. No authority either for or against this proposition was provided by the parties and I am not satisfied at this stage that it is always impermissible for a party to refer to past resolved events in an effort to establish a pattern of behaviour. Similar considerations exist in considering the mootness point.

17In the event that this Application is re-opened at the conclusion of the grievance arbitration, the respondents may wish to renew these requests in light of what remains in dispute between the parties.

18I am not seized of this matter.