Lagana v. Saputo Dairy Products Canada, 2009 HRTO 1943

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tony Lagana

Applicant

-and-

Saputo Dairy Products Canada G.P., Rob Castellano, Pat Roehl and Frank Zbaraschuk

Respondents

AND B E T W E E N:

Tony Lagana

Applicant

-and-

Rob Castellano, Pat Roehl, Frank Zbaraschuk and Dino Dello Sbarba

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: November 17, 2009

Citation: 2009 HRTO 1943

Indexed as: Lagana v. Saputo Dairy Products Canada

1These are two Applications made under the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code"). The purpose of this Interim Decision is to deal with a Request for an Order During Proceedings (the "Request") made by the respondents in both Applications to consolidate or hear the two applications together.

BACKGROUND

2Tribunal File TR-0419-09 ("the transition Application") is a complaint originally filed by the applicant with the Ontario Human Rights Commission (OHRC) on November 19, 2007. This was brought before the Tribunal through an Application made under section 53(5) of the Code. This Application alleges that the respondents failed to accommodate the applicant's disability during his employment. The Application focuses on events that allegedly occurred during the period April 23, 2007 to October 30, 2007. This Application has yet to be scheduled although the respondents are of the opinion that it will be scheduled for a one day hearing in February 2010.

3Tribunal File 2008-00897-I ("the section 34 Application") is an Application filed under section 34 of Part IV of the Code. This Application deals with the termination of the applicant's employment on December 10, 2007. The Application characterizes the termination as a reprisal for having filed his first complaint on November 17, 2007. This Application has been scheduled for a one day hearing on January 10, 2010.

4The respondents argue that consolidation is appropriate as there are common issues of fact and law in both applications. They argue that there is a public interest in avoiding a multiplicity of proceedings. Finally, they argue that there is no prejudice to the applicant if the Applications are consolidated but there would a risk of inconsistent decisions if the Applications are not heard together.

5The applicant opposes the Request, only stating that he disagrees with the Request and that the respondents have had plenty of time to get a lawyer.

ANALYSIS AND DECISION

6The authority to consolidate or hear applications together can be found on the Tribunal's Rules. Rule 1.7(d) of the Rules of Procedure Governing applications under the Human Rights Code, Part IV states that in order to provide for the fair, just and expeditious resolution of matters before it the Tribunal may consolidate or hear applications together. Rule 4.3 of the Rules of Procedure for Transitional applications under Section 53(3) and 53(5) of the Human Rights Code states that to ensure the fair, just and highly expeditious resolution of an application under sections 53(3) and 53(5) of the Code the Tribunal may take any other action the Tribunal determines to be appropriate.

7In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the following factors for consideration when determining whether to consolidate or hear two proceedings together from the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway 2002:

1. 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;

2. 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

3. Whether there are common issues of fact or law.

8I am satisfied that there are common issues of fact given that both Applications arise out of related incidents from the applicant's employment in 2007 with the respondents. There are common and interrelated issues of law not the least being the fact that the section 34 Application is based on an allegation of reprisal for events raised in the transition Application.

9I am satisfied that the public interest in avoiding a multiplicity of proceedings, including considerations of expense for the parties, the convenience of the parties, reducing the need for the repetition of evidence, and the risk of inconsistent results are significant factors in favour of consolidation in this case.

10I do note the fact that the respondents in these two Applications are not identical. The transition Application names a corporate respondent and three personal respondents (the personal respondents are all employees of the named corporate respondent). The section 34 Application names the same three personal respondents and a fourth personal respondent but does not name the corporate respondent. However, I accept the respondents' argument that this is not a significant impediment to having the Applications heard together and that issues of liability can be dealt with in the context of a consolidated hearing.

11The applicant appears to suggest in his brief reply to the Request that a delay in proceedings would be unfair. However, I do not consider a potential delay from a hearing currently scheduled at the beginning of January 2010 to possibly sometime in February 2010 to be prejudicial to the applicant.

12For these reasons, 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 with the Tribunal in these Applications should be addressed solely to the Registrar and not the Registrar-Transition.

13I have considered whether the current scheduled date of January 10, 2010 should be preserved to hear both Applications. However, it appears that the Applications together will take more than one day to be heard and there are issues about whether the parties would have suitable time to disclose documents and information about witnesses prior to January 10, 2010. Given the circumstances the January 10, 2010 hearing date will be cancelled and a two day hearing will be scheduled for as soon after February 1, 2010 as possible.

ORDER

14The Tribunal makes the following order:

1. The TR-0419-09 and 2009-00897-I Applications will be heard together.

2. The January 10, 2010 hearing date for 2009-00897-I will be cancelled and a two day hearing will be scheduled to hear both Applications.

15I am not seized of this matter.