Lance Tyszka v. Sleeman Breweries Ltd., 2009 HRTO 2076

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lance Tyszka

Applicant

-and-

Sleeman Breweries Ltd. and Great-West Life Assurance Company

Respondents

A N D B E T W E E N:

Lance Tyszka

Applicant

-and-

Sleeman Breweries Ltd., Claire Tong and Robert Maarse

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: December 1, 2009

Citation: 2009 HRTO 2076

Indexed as: Tyszka v. Sleeman Breweries

APPEARANCES BY

Lance Tyszka, Applicant ) On His Own Behalf

Sleeman Breweries Ltd., Claire Tong and ) James Knight, Counsel Robert Maarse, Respondents )

Great-West Life Assurance Company ) Jason Larsen, Counsel Respondent )

1These matters consist of an Application alleging breach of settlement, filed on May 25, 2009 (2009-02450-S), and a further Application filed on July 17, 2009 (2009-03179-I), under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination on the basis of disability and reprisal under the Code. The hearing is scheduled to begin on December 7, 2009.

2This Interim Decision confirms procedural directions provided orally in a pre-hearing teleconference convened on November 26, 2009 and deals with additional preliminary issues.

Requests for Orders

3Multiple Requests for Orders During Proceedings (RFOPs) remain outstanding. The following is my consideration of those RFOPs and appropriate orders.

Removal of counsel

4The applicant filed a request to remove counsel for the respondent, James Knight, on the basis that he presents with a conflict of interest. The applicant’s argument rests on the following assertion:

At the time the Mediation “Memorandum of Agreement” was put in place, Knight acted as counsel to Sleeman. At the conclusion of discussions and despite the availability of Tribunal resources, Knight insisted on preparing the “Memorandum of Agreement” on his personal laptop. During the preparation of this document [with all parties present in the room], Knight provided comment, directed to both the applicant and the respondent, and thereby acted in a role that could be construed, in my opinion, as counsel to both parties.

5It appears that the applicant also takes the position that Mr. Knight’s conduct constituted a breach of his professional obligations and has filed a complaint to the Law Society of Upper Canada alleging a number of violations. Mr. Knight objects to the applicant’s request to remove him as counsel on the basis that the allegation he acted as counsel to both parties is “entirely without merit”.

6There is nothing in the facts as alleged that support the removal of counsel. The applicant alleges that Mr. Knight drafted the Minutes of Settlement. He further alleges that Mr. Knight commented on the Minutes in a plenary meeting with the parties. Neither of these facts, on their own, substantiates a conclusion that Mr. Knight either acted, or appeared to be acting, as counsel to the applicant. Moreover, in his Request the applicant does not allege that he in fact believed Mr. Knight to be acting as his counsel. Even if he did, however, this would not determine the question. The facts indicate the following:

• Mr. Knight never expressly represented himself to be acting in the capacity of anything other than counsel to the respondent, Sleeman Brewing and Malting Company;
• The applicant never spoke privately with Mr. Knight at the mediation;
• The applicant was accompanied by a representative of his union, which intervened in the case.

7On the basis of the foregoing, I am unable to find sufficient support to grant the applicant’s request to remove Mr. Knight from the record.

Cease and desist

8The respondent, Sleeman, requests an order that the applicant “cease and desist from engaging in vexatious, harassing, insulting or threatening behaviour against Mr. Knight, Filion Wakely Thorup Angeletti LLP, and Sleeman.”

9Litigation can be an emotionally charged experience, especially when the stakes are high and the parties’ interests are affected at a deeply personal level, such as in the employment setting. The parties are reminded, however, that the Tribunal requires them to conduct themselves with civility, good faith and professionalism.

10Because I have not heard any evidence related to the respondent’s allegation that the applicant has conducted himself improperly, I am not ruling on this request at present. The respondent is free to raise the issue again at the hearing if necessary.

Involvement of Great West Life

11The applicant filed a further RFOP seeking to strike any Response filed by the respondent, Great-West Life, and to deny any right to participate in the hearing process and to accept the Application as filed as determinative of all the allegations against Great-West Life should it fail to attend the first day of hearing.

12The respondent Great-West Life has not yet filed a complete Response. It relies on Rule 8.2, which exempts respondents from filing a complete Response where the respondent alleges the issues in dispute in the Application are the subject of a civil court proceeding requesting a remedy based on the alleged human rights infringement. The respondent filed a Form 2, as required, on September 23, 2009 and attached a copy of a Statement of Claim, issued by the Guelph Small Claims Court on July 13, 2009, in which the applicant is named as the plaintiff and Great-West Life, along with Sleeman Breweries, are named as defendants. The claim seeks $10,000 in damages for breach of an employment contract.

13It is clear the respondent Great-West Life has complied with its preliminary obligations under the Rules. There is no basis to grant the applicant’s request.

First day of hearing

14In the pre-hearing conference call, the parties agreed that it would not be possible to proceed with their cases on the first day of hearing, given the outstanding jurisdictional issue. Both the contravention of settlement Application (file 2009-02450-S) and the reprisal Application (file 2009-03179-I) are subject to dismissal requests by the respondents. Section 34(11) of the Code provides:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

15Section 46.1 reads as follows:

(1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

16In Beaver v. Dr. Hans Epp Dentistry Professional Corp., 2008 HRTO 282 at para. 10, the Tribunal held as follows:

Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant’s decision to raise the Code and seek remedies for its violation in a court action.

17During the pre-hearing conference call, the parties were directed to prepare submissions on the applicability of section 34(11), to be argued at the outset of the oral hearing on December 7, 2009. The parties were also directed to prepare oral submissions on the applicability of section 45 of the Code and Rule 14.1, which grant the Tribunal the discretion to defer consideration of an Application pending the outcome in another legal proceeding. The respondent, Great-West Life, also agreed to attend the hearing and make oral submissions on these issues.

18The applicant’s union, the Sleeman Employee Association (the “Association”), was an intervenor in the applicant’s previous matter and was a party to the underlying Minutes of Settlement that are at issue in the contravention of settlement Application. The parties consented to serving notice of the December 7, 2009 hearing date on the Association as an Affected Party in these proceedings. If the Association chooses to attend, it may request intervenor status at that time and will be permitted to make submissions on what role, if any, it will play in the hearing.

19Finally, during the pre-hearing conference call, all of the parties agreed to attempt mediation on the afternoon of December 7, 2009. The afternoon portion of the hearing is therefore adjourned to permit the parties to mediate.

ORDER

20I order that:

I. The applicant’s requests to remove respondent counsel and to prevent the respondent Great-West Life from further participation in these proceedings are denied.

II. The parties shall make submissions on the applicability of s. 34(11) and s. 45 of the Code at the outset of the hearing on December 7, 2009.

III. The applicant’s bargaining agent, the Sleeman Employee Association, shall be provided with notice of the hearing and mediation as an Affected Party to these Applications.