HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Vinay Bhandari
Applicant
- and -
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Education, Sanaul Haque, Asif Khan and Soussan Tarari
Respondents
INTERIM decision
Adjudicator: David Muir
Indexed as: Bhandari v. Ontario (Education)
1This is an Application filed February 17, 2009, under section 53(5) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of creed and ethnic origin. The applicant also alleges a reprisal.
2The respondents filed a Request for Order During Proceedings (“Request”) on July 8, 2009, seeking an Order restricting the applicant’s communications with members of the public service about the issues raised by this Application. Although the request is quite broadly framed, the particular concerns of the respondents are twofold.
3First, they allege that the applicant is circulating a witness statement of a respondent in the Application which was taken during an internal workplace harassment investigation. This document came into the possession of the applicant in the context of a grievance arbitration dealing with a number of grievances filed by the applicant and was subject to an Order of the Grievance Settlement Board (“GSB”) restricting the applicant from distributing it amongst members of the public service. The grievances have now been resolved; however, the applicant was found to have been in breach of the GSB’s orders restricting the circulation of this and other documents coming into the applicant’s possession in the context of the arbitration.
4Second, the respondents state that the applicant is circulating emails to various members of the public service including the Ontario Provincial Police, which they say constitute harassment and are hateful statements targeted against an identifiable group.
5Submissions were sought from the parties. The respondents have provided their submissions, the applicant has not.
6The respondents state that the Order sought is appropriate for the following reasons:
There is a deemed undertaking that parties in a proceeding will not use evidence that came into their possession during one dispute resolution process to advance a claim in another.
The witness statements and comments which the applicant is communicating were obtained by him through the grievance process that is now concluded.
The employer will take the position that such evidence is not admissible at a hearing before the Tribunal unless it is found to be relevant by the Tribunal.
The statements made by the applicant are themselves statements that constitute harassment and hateful statements targeted against an identifiable group. All attempts should be made to have these statements stop.
Each time one of these egregious statements is circulated by the Applicant, substantial resources are engaged to ensure that the impact to the respondents is minimized and to ensure that the net of harassment is not expanded.
By issuing the Order requested the Tribunal is able to prevent the harmful impact to the respondent employer’s workplace and to current employees who may be members of the identified groups subject to attack by the applicant’s communications.
The Tribunal ought to maintain a dispute resolution process that provides for minimal impact to involved parties and potential witness.
7As the applicant has chosen not to respond to the Request, for purposes of this Interim Decision I will assume that the background facts as alleged by the respondents are true.
8There are two issues that arise out of this Request. The first is the scope of the Tribunal’s ability to control the conduct of the parties before it when that conduct is arguably outside of the adjudicative process. The second issue, raised only obliquely by the respondents, is whether or not some or all of the issues raised in this Application have already been dealt with in the several grievances filed by the applicant and which I am advised have concluded.
9Considering the first issue raised by the respondents in the Request, there can be little doubt that the use, for whatever purpose, of materials obtained solely for the purposes of a prior proceeding should not be used in the manner that the applicant has chosen to use them. I also accept the respondents’ assertion, which appears to have been endorsed by the GSB, that the circulation of the materials by the applicant and the manner in which he has chosen to do so may cause harm to the respondents’ workplace and its employees. However, for the reasons to follow it is not clear to me what I can do to remedy the situation at this stage of the proceeding.
10The implied undertaking which the applicant has chosen to flout was given in another proceeding. It is not clear to me how I can enforce that undertaking. Moreover. it is not clear what authority I have to enforce the Order of the GSB. I am required to control this process and may make whatever Order is appropriate to prevent an abuse of the Tribunal’s process. However. the nexus between the applicant’s conduct and this Application is less than crystal clear. As inappropriate as the applicant’s conduct appears to be on its face, I am not satisfied at this stage that it has any impact on this proceeding. For example. the respondent has taken the position that the witness statement that is being circulated by the applicant is not relevant to this Application. Unless the conduct of the applicant. including the misuse of sensitive or privileged materials. can be related to this proceeding, the Tribunal is unable to make any meaningful Order at this stage.
11This leads me to the second issue, which is whether or not it can be said that the substance of this Application has been dealt with in the arbitration proceeding or whether it would be an abuse of the Tribunal’s process to proceed with it in light of the parties’ settlement. The parties are directed to section 45.1 of the Code which provides:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
12The grievances in question are described in one of four interim decisions released by the GSB as follows:
Mr. Bhandari has filed nine grievances one which alleges that he was discharged without just cause. The other grievances filed include allegations of discrimination and harassment in the workplace as well as suspensions without just cause.
11Although the human rights complaint underlying this Application was filed before the applicant’s employment was terminated and therefore that issue is not before the Tribunal, the other allegations made related to harassment, discrimination and unjust suspensions appear to be similar to the issues raised by the grievances as described by the GSB.
12The parties are directed to make submissions and provide whatever documents or other materials bearing on the question of the applicability of section 45.1 or, alternatively the doctrine of abuse of process to this Application in accordance with the following schedule:
The respondents shall deliver to the applicant and file with the Tribunal their submissions and relevant documents or other materials bearing on the question within 20 days of the date of this decision.
The applicant shall deliver to the respondents and file with the Tribunal his submissions and relevant documents or other materials bearing on the question within 20 days of receiving the materials of the respondents.
13The Tribunal will make further directions with respect to this matter upon receipt of the parties’ submissions.
[14 ] I am not seized.
Dated at Toronto, this 4^th^ day of November, 2009.
“Signed by”
David Muir
Vice-chair