HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Frank Paterno Applicant
-and-
The Salvation Army, Centre of Hope, Nancy Kerr and Nancy Powers Respondents
AND BETWEEN:
Frank Paterno Applicant
-and-
The Salvation Army, Centre of Hope Respondent
AND BETWEEN:
Frank Paterno Applicant
-and-
The Salvation Army, Mary-Ellen Jacobs, William Francis and Lee Graves Respondents
INTERIM DECISION
Adjudicator: Ken Bhattacharjee Date: June 21, 2010 Citation: 2010 HRTO 1388 Indexed as: Paterno v. Salvation Army
INTRODUCTION
1The purpose of this Interim Decision is to address the respondents’ Request to dismiss one Application, and to request written submissions from the parties as to whether (a) the Tribunal should consolidate the three Applications, and (b) it is appropriate for the Tribunal to defer consideration of these Applications pending the conclusion of a grievance proceeding.
BACKGROUND
2The applicant filed three Applications under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) at different times in 2009 and 2010, which appear to relate to the same events in 2008 and 2009, but list different grounds of the Code and make different allegations with respect to the events and the Code grounds.
3The respondents filed Responses in the first two Applications, 2009-02495-I and 2009-03547-I, which deny the allegations of discrimination. The Response to the third Application, 2010-05198-I, is pending.
REQUEST TO DISMISS 2009-03547-I
4With respect to the Application 2009-03547-I, the respondent requested that it be dismissed on the basis that a complaint was filed with the Ontario Human Rights Commission (“Commission”) based on the same, or substantially the same, facts. In its narrative, the respondent identified the complaint as Tribunal File 2009-02495-I.
5The respondent’s Request is denied as there was no complaint filed with the Commission. In fact, the Request relates to Application 2009-02495-I, which has never been the subject of a Commission complaint. However, there is an issue as to whether the three Applications should be consolidated.
CONSOLIDATION
6Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together.
7In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:
(a) 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;
(b) 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
(c) Whether there are common issues of fact or law.
8The respondents are directed to deliver to the applicant and file with the Tribunal by July 5, 2010 written submissions, including documents and case law, if any, which address the issue of consolidation.
9The applicant is directed to deliver to the respondents and file with the Tribunal by July 19, 2010 written submissions, including documents and case law, if any, in response.
REQUEST TO DEFER 2009-03547-I
10With respect to Application 2009-03547-I, the respondent also requested that the Tribunal defer consideration of the Application until the completion of a grievance process. The respondent submitted that the main issues in this Application are currently before an arbitrator at a hearing that began in January 2010.
11The applicant filed a Response to a Request for an Order, which opposed the respondent’s deferral request. The applicant admitted that some of the issues in his Application are before an arbitrator, but submitted that the arbitrator has limited the evidence that he will hear, and that the discrimination issues in his Application are not before the arbitrator.
12Section 45 of the Code provides that the Tribunal may defer an Application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.
13In Bhagdasserians v. 674460 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-20:
Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.
14In my view, it is appropriate to request written submissions from the parties and the applicant’s union (Service Employees International Union) as to whether the Tribunal should defer consideration of all three Applications pending the conclusion of the grievance proceeding.
15The respondents are directed to deliver to the applicant and his union and file with the Tribunal by July 5, 2010 written submissions, including documents and case law, if any, which address the issue of deferral. The respondents should ensure that they address what issues in the Applications are before the arbitrator, whether the discrimination issues in the Applications are before the arbitrator, and the status of the hearing before the arbitrator.
16The union is directed to deliver to the applicant and the respondents and file with the Tribunal by July 19, 2010 written submissions, including documents and case law, if any, in response.
17The applicant is directed to deliver to the respondents and his union and file with the Tribunal by August 2, 2010 written submissions, including documents and case law, if any, in response.
18The applicant is directed to carefully read the Tribunal’s Applicant’s Guide, particularly page 10, if he is contemplating filing further Applications with the Tribunal in relation to the events that occurred in 2008 and 2009. The Guide is available on the Tribunal’s website or upon request from the Tribunal’s Registrar.
19I am not seized of this matter.
Dated at Toronto, this 21st day of June, 2010.
”signed by”______________
Ken Bhattacharjee
Vice-chair