Bruce v. Ontario Secondary School Teacher’s Federation, 2009 HRTO 38

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenneth William Bruce

Applicant

-and-

The Ontario Secondary School Teacher’s Federation, Sandra Sahli, Pat Pajot and Geoff Delaplanque

Respondents

AND B E T W E E N:

Kenneth William Bruce

Applicant

-and-

Greater Essex County District School Board, Mary Jean Gallagher, Heather Liffiton, Bob Garrett, Diane Beck, Dawn Garvey and Ms. Constable

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: January 13, 2009

Citation: 2009 HRTO 38

Indexed as: Bruce v. Ontario Secondary School Teacher’s Federation

1These are two applications filed November 13, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondents named in T-0477-08 have not filed their responses (Form B) as of this writing. The purpose of this decision is to issue case management directions with respect to a number of issues arising from the Applications and the responses received.

2The applications are briefly summarized as follows:

T-0476-08: The applicant, a former employee of the respondent school board in T-0477-08, alleges that he was discriminated against in employment by the respondents, his trade union and its officials at the time, on the basis of sex, sexual solicitation and reprisal in the manner in which they represented him in response to the termination of his employment by the respondent school board.

T-0477-08: The applicant, a former employee of the respondent school board, alleges that he was discriminated against in employment by the respondents, the school board and several of its employees, on the basis of sexual solicitation and reprisal when his employment was terminated.

Applications to proceed together

3The Tribunal’s Rules for Applications under section 53(3) of the Code are to be interpreted and applied in a way that ensures a fair, just and highly expeditious process for the determination of these applications.

4These applications both arise out of the termination of the applicant’s employment and subsequent litigation and appear to raise similar legal issues. Accordingly, I find, pursuant to Rules 1.1, 4.1 and 4.3 (m), that in order to ensure a fair, just and highly expeditious process for their resolution, these applications should proceed together for the purposes of mediation.

5In order to assist in scheduling the mediation expeditiously, all parties are requested to provide, within 10 days from the date of this decision, a list of available dates for mediation in April 2009.

Proper Service of the Respondents

6The Tribunal is in receipt of a letter from counsel for several of the respondents identified in T-0477-08. Counsel advises that they represent the school board and three of the identified individuals. They do not represent Dawn Garvey who they state is represented by the respondent trade union in the other application. Counsel for the respondent trade union is not on record as representing Ms. Garvey. Counsel also advises that they do not represent Ms. Constable, who it is said, is not known to the respondents. A review of the Human Rights Complaint form indicates that Ms. Constable may be an employee of the respondent school board at “Parkview”. Delivery to the respondents in this Application was affected by delivery to counsel. Accordingly it is not clear whether these two respondents are aware of these proceedings.

7The Tribunal makes the following case management directions:

a. The respondent school board shall provide the last known contact information for Dawn Garvey to the applicant within 5 days of receipt of this decision.

b. The respondent shall confirm or not whether a Ms. Constable is or was an employee of the respondent within 5 days of receipt of this decision and if it does, or does not represent this individual. The Tribunal recognises that as the applicant has not provided a full name for this individual that it may be difficult to identify them.

c. Counsel for the respondent trade union shall confirm in writing whether he represents Dawn Garvey in respect of the Application and whether service of the Application and other materials can be effected by delivery to him.

d. In the event that Dawn Garvey is not represented, the applicant shall make reasonable efforts to deliver the Application to the Dawn Garvey and file a Form C in accordance with the Rules.

e. In the event that Ms. Constable is identified and contact information for her can be obtained and if the applicant wishes to continue to pursue this Application against this individual, he will deliver a copy of the Application to her and file a Form C in accordance with the Rules.

Preliminary Requests to Dismiss

8The respondents in T-0476-08 have requested an early dismissal of the Application pursuant to s. 45.1 on the basis that these matters have been appropriately dealt with in the various proceedings that followed the termination of the applicant’s employment. Alternatively they seek the dismissal of the application on the basis that it is tainted by delay, and/or is vexatious and brought in bad faith.

9Section 53(4) of the Code required the Tribunal to establish rules to determine section 53(3) applications expeditiously. In accordance with this statutory mandate, the Tribunal developed a process whereby it was expected that the first step in a section 53(3) application would be mediation at an early date. If mediation were unsuccessful, the mediator would also assist the parties to complete a mediation checklist to assist in the processing of the application for hearing at a case resolution conference. This process is set out in the Tribunal’s Guide to Section 53(3) applications and the Rules of Procedure for Applications under Section 53(3) of the Human Rights Code (Rule 8).

10The expectation is that most section 53(3) applications will be scheduled for mediation prior to the hearing and determination of preliminary matters. However, the Tribunal retains the discretion to control its process and will hear preliminary requests prior to the mediation in appropriate circumstances.

11The Tribunal makes the following case management directions:

a. The respondent trade union shall deliver to all other respondents and file with the Tribunal within 20 days of this decision their submissions in support of their requests as outlined above;

b. The respondent school board shall deliver to all of the parties its position with respect to the respondent trade union’s requests and any submission with respect to them;

c. The applicant shall deliver to all of the respondents and file with the Tribunal his response to the requests within 10 days of receipt of the respondents’ submissions;

d. The respondents shall deliver to the applicant and file with the Tribunal their reply submissions, if any, within 10 days of receipt of the Applicant’s submissions;

e. The parties shall provide their availability for a one day case resolution conference to deal with the preliminary requests of the respondent.

12I am not seized of these matters.