HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Knibbs

Applicant

-and-

Brant Artillery Gunners Club, William Bourne, Elaine Bourne and Ray Paine

Respondents

A N D B E T W E E N:

Stephanie Long

Applicant

-and-

Brant Artillery Gunners Club, William Bourne, Elaine Bourne and Richard Calder

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: September 8, 2009

Citation: 2009 HRTO 1419

Indexed as: Knibbs v. Brant Artillery Gunners Club

INTRODUCTION

1The purpose of this Interim Decision is to address the applicants’ Requests for orders to consolidate and have the Applications heard together, to remove two individual respondents from the Application of Heather Knibbs, and to amend the Application of Stephanie Long to include the ground of reprisal.

BACKGROUND

2The applicant, Heather Knibbs (the “applicant Knibbs”), and the applicant Stephanie Long (the “applicant Long”) are cousins. They were both employed by the organization respondent. They began living together in or about December 2008.

3The applicant Knibbs filed an Application under s. 34 of the Human Rights Code, as amended (the “Code”), on November 10, 2008, which alleges that between July and October 2008 the respondents harassed and discriminated against her because of her disability and subjected her to reprisal with respect to employment.

4Specifically, she alleges that the respondents denied her the right to return to work following a medical leave, publicized confidential medical information about her, demoted her to part-time status, and finally laid her off while assigning and hiring other employees to do her job.

5The respondents filed a Response on December 16, 2008, which denies the allegations of harassment, discrimination and reprisal. Specifically, they admit that they laid the applicant off, but deny that she was fired. They also state that they offered her part-time employment based on health and safety concerns and operational needs, and provided that she submit a medical clearance, but she did not respond. They further state that she disclosed her medical information to others in the workplace, which contradicts her claim that it was confidential. Finally, they state that they are investigating dishonest and potentially illegal activities by the applicant in the workplace.

6The applicant Long filed an Application under s. 34 of the Code on May 7, 2009, which alleges that between October 2008 and February 2009 the respondents discriminated against her with respect to employment because of her disability, her sex and her association with a person identified by a Code ground.

7Specifically, she alleges that the respondents prohibited her from performing her regular duties and reduced her work hours after she took a medical leave of absence and became pregnant, they warned her not to associate with the applicant Knibbs, and they suspended her and made false allegations of illegal conduct against her.

8The respondents filed a Response on June 8, 2009, which denies the allegations of discrimination. They state that they assigned the applicant work hours based on health and safety concerns and operational needs. They also state that they suspended the applicant because of an ongoing investigation with respect to potential illegal activities by her in the workplace. They further state that they suspect that the applicant and Ms. Knibbs may have been involved in the illegal activities together.

CONSOLIDATION AND HEARING TOGETHER

9The applicants filed Requests for an Order During Proceedings on August 14, 2009, which request that the Tribunal order that the Applications be consolidated and heard together. The respondents did not file Responses to the Requests.

10Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear Applications together.

11In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

12In my view, the Applications should be consolidated and heard together. There are clearly common and overlapping issues of fact and law, and a public interest in avoiding a multiplicity of proceedings. Furthermore, the respondents have not identified, and I do not see, any prejudice that would result to them from having a single hearing.

13The Tribunal scheduled a hearing with respect to the applicant Knibbs' Application (File No. 2009-00735-I) for October 6, 7, 8 and 20, 2009, and the deadline for disclosure of documents and witnesses has already passed. The Tribunal has not yet scheduled a hearing with respect to the applicant Long’s Application (File No. 2009-02215-I), and no disclosure of documents and witnesses has occurred.

14The Tribunal therefore orders that the both Applications be heard on October 6, 7, 8 and 20, 2009, and any further scheduled dates as need be, and that the parties in File No. 2009-02215-I comply with Rules 16 and 17 of the Tribunal’s Rules with respect to disclosure of documents and witnesses by no later than September 22, 2009. The timelines for disclosure are abridged in accordance with Rule 1.7(a) of the Tribunal’s Rules.

15In my view, the parties should also provide submissions to the Tribunal on the order in which evidence should be heard at the hearing. The applicants shall deliver to the respondents and file with the Tribunal their submissions by no later than September 22, 2009. The respondents shall deliver to the applicants and file with the Tribunal submissions in response by no later than September 29.

REMOVE RESPONDENTS

16The applicant Knibbs also requests that the Tribunal remove the individual respondents, Linda Conrad and Claude Alain, from her Application. She states that she is now satisfied that they were not involved in the decisions or actions that form the basis of her Application.

17The respondents have not identified, and I do not see, any reason not to grant the request. The Tribunal therefore orders that Ms. Conrad and Mr. Alain be removed as respondents from the applicant Knibbs’ Application.

AMEND APPLICATION

18The applicant Long also requests that the Tribunal allow her to amend her Application to add the ground of reprisal. She states that in their Response the respondents raised a new allegation of theft against her that had not previously been raised. She alleges that this new allegation constitutes reprisal for filing a human rights Application.

19The respondents have not identified, and I do not see, any reason not to grant the request.

20The Tribunal therefore orders that the applicant Long’s Application be amended to include the ground of reprisal. The respondents may deliver to the applicant and file with the Tribunal an amended Response by no later than September 22, 2009. The applicant may deliver to the respondents and file with the Tribunal a Reply by no later than September 29. The delivery and filing timelines are abridged in accordance with Rule 1.7(a) of the Tribunal’s Rules.

ORDER

21The Tribunal makes the following Orders:

(a) The Applications shall be consolidated and heard together on October 6, 7, 8 and 20, 2009, and any further scheduled dates as need be.

(b) The parties in File No. 2009-02215-I shall comply with Rules 16 and 17 of the Tribunal’s Rules with respect to disclosure of documents and witnesses by no later than September 22, 2009.

(c) The applicants shall deliver to the respondents and file with the Tribunal submissions on the order in which evidence should be heard at the hearing by no later than September 22, 2009. The respondents shall deliver to the applicants and file with the Tribunal submissions in response by no later than September 29, 2009.

(d) The individual respondents, Linda Conrad and Claude Alain, are removed from the Application of File No. 2009-00735-I and the style of cause amended accordingly.

(e) The Application in File No. 2009-02215-I is amended to include the ground of reprisal.

(f) The respondents in File No. 2009-02215 may deliver to the applicant and file with the Tribunal an amended Response by no later than September 22, 2009. The applicant may deliver to the respondents and file with the Tribunal a Reply by no later than September 29.