Dyal v. Toronto Transit Commission, 2009 HRTO 61

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harry Dyal

Applicant

-and-

Toronto Transit Commission and Mike James

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: January 19, 2009

Citation: 2009 HRTO 61

Indexed as: Dyal v. Toronto Transit Commission

1This Interim Decision addresses the respondents’ request for the early dismissal of the Application and its request for an order for production of arguably relevant documents.

2The Application in this matter was filed on August 19, 2008. It relates to a complaint filed with the Ontario Human Rights Commission on March 7, 2008, alleging that the respondents engaged in ongoing racial discrimination from May 2007 until the termination of the applicant’s employment in November 2007. The respondents deny the allegations of racial discrimination and assert that the applicant’s employment was terminated on the basis that he was impaired while on duty on November 11, 2007.

3The applicant was a probationary employee and a member of the Amalgamated Transit Union Local 113 (the “Union”). The Union unsuccessfully appealed the applicant’s discharge to Step 2 of the grievance procedure set out in the collective agreement. As a probationary employee, the applicant was precluded under the terms of the collective agreement from processing his grievance further, unless the TTC acted in bad faith, or in an arbitrary or discriminatory manner. The applicant allegedly did not raise any of the allegations of racial discrimination during the grievance process and the Union did not attempt to process the grievance to arbitration.

4The applicant also filed a duty of fair representation complaint against the Union which was dismissed by the Ontario Labour Relations Board on April 11, 2008 on the basis that the applicant had not established a prima facie violation of the Union’s duty of fair representation.

Request for early dismissal

5The respondents submit it would be an abuse of process for the Tribunal to permit the Application to proceed because the nature of the Application is one that could or should have been more appropriately dealt with under another Act, namely the Labour Relations Act, 1995, S.O. 1995 c.1 sched. A, as amended. In addition, or alternatively, they assert the applicant is forum shopping and using the Tribunal process as a means to achieve what he could have but failed to achieve in another forum.

Application is one more appropriately dealt with under another Act

6The respondents’ argument that the applicant should have raised the allegations of racial discrimination under the grievance procedure appears to be framed under a repealed provision of the Code. Previously, section 34 of the Code granted the Ontario Human Rights Commission the discretion to refuse deal with a complaint that could be more appropriately dealt with under another Act. That provision is no longer in force.

Request to Dismiss Under Section 45.1

7Although the respondents did not refer to section 45.1, it appears to the Tribunal that it is relevant to the request for early dismissal.

Section 45.1 of the Code provides as follows:

a. 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.

8In the circumstances, I am not satisfied that the applicant’s allegations of racial discrimination have been dealt with appropriately in another proceeding, as the applicant’s dismissal grievance did not address the allegations of racial discrimination and was not referred to arbitration.

Abuse of Process

9In the alternative, the respondents submit that the applicant’s failure to raise the discrimination allegations during the grievance process amounts to “forum shopping” and is an abuse of process. While the jurisprudence of the Tribunal establishes that the categories of conduct which might give rise to a finding of abuse of process are not closed, I am not persuaded that the applicant’s decision in these circumstances to engage the human rights process rather than raise the discrimination allegations during the grievance process amounts to an abuse of process.

Production Request

10The respondents requested that the applicant produce all notes, records, and test results by any medical practitioner seen by the applicant in connection with his health condition on November 11, 2007, the date that the respondents assert that the applicant was intoxicated. The applicant intends to rely upon a report from the emergency department of a Toronto hospital that he attended on November 11, 2007 which, he asserts, establishes that he was not intoxicated. The report makes a recommendation for a follow-up visit with a family doctor. I find that, if the applicant visited his family physician or any other medical facility in the month before or after November 11, 2007, in relation to his health condition on November 11, 2007, these documents are arguably relevant and should be disclosed.

11Accordingly, the applicant is ordered to disclose to the respondents all notes, records and test results by any medical practitioner seen by the applicant in the month before or after November 11, 2007 in connection with his health condition of November 11, 2007, within 10 days of the date of this decision, or to advise the Tribunal and the respondents that such documents do not exist, within five days of the date of this decision.

12The respondents also sought an order that the applicant disclose all arguably relevant documents. The parties are under an obligation to disclose all arguably relevant documents and a specific order from this Tribunal to that effect is not required. If the respondents believe that there are documents in the applicant’s possession which have not been disclosed, they must identify them before requesting an order in the abstract.

13I am not seized.