HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bi Ying Lam Applicant

-and-

Ontario Ombudsman Respondent

A N D B E T W E E N:

Bi Ying Lam Applicant

-and-

COPE Ontario, COPE Local 343, Janice Best, Elizabeth Fong and Sean Clancy Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin Date: July 7, 2010 Citation: 2010 HRTO 1487 Indexed as: Lam v. Ontario Ombudsman

1Tribunal File 2009-02569-I is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code") alleging discrimination in employment on the basis of race, colour and ethnic origin (the "Ombudsman Application"). The Ombudsman Application is scheduled for hearing on September 27, 28 and 29, 2010.

2Tribunal File 2009-02856-I is an Application filed under section 34 of Part IV of the Code, alleging discrimination in vocational association on the basis of race, place of origin and ethnic origin (the "Union Application"). The Union Application is scheduled for hearing on October 6 and 7, 2010.

3On May 18, 2010, the Tribunal issued an Interim Decision granting the union's request for intervention in the Ombudsman Application and requesting submissions from the parties in both Applications as to whether the Applications should be heard together: 2010 HRTO 1103. Subsequently, at the applicant's request, the date for filing submissions on this issue was extended to June 15, 2010.

4The respondents in both Applications have filed submissions in which they support the Applications being heard together and/or consolidated. The applicant has not filed any submissions and the time for doing so has elapsed.

DECISION

5Rule 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.

6In 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) outlining factors that should be considered in the context of 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.

7Applying these factors and having regard to the submissions of the parties, I find that it is appropriate to hear these Applications together. The Applications arise out of a common factual background – the applicant's employment and termination from employment with the Ombudsman. Among other things, the applicant alleges that her termination by the Ombudsman was contrary to the Code and that her union, which represented her, failed to pursue her grievance regarding her termination also for discriminatory reasons. Having regard to the common factual background, I find that it is in the public interest to avoid multiple proceedings involving the repetition of evidence and the risk of inconsistent results that may occur if these matters were heard separately. Further as noted above, all respondents support the Applications being heard together.

ORDER

8The Tribunal therefore makes the following order:

a) The Applications will be heard together on September 27, 28 and 29, 2010;

b) The hearing dates of October 5 and 6, 2010 are cancelled; and

c) The Tribunal will schedule a case management conference call during the week of September 6, 2010, such date to be confirmed by Registrar's letter by August 6, 2010 following consultation with the parties as set out in paragraph [9] below. At the conference call, the parties should be prepared to make submissions regarding the format of the consolidated hearing, including issues to be decided, witness order, bifurcation of issues of liability and remedy, and any other relevant procedural matters.

9The parties are directed to advise of their availability for a conference call on September 7, 8, 9 and 10 at either 8:30 or 4:30 p.m. within 14 days of the date of this Interim Decision.

10I note that the respondent Ombudsman has requested an order that the respondent Ombudsman not be found liable in relation to the events and allegations at issue against the respondents named in HRTO File No. 2009-02896-I. This request will be addressed by the Vice-chair hearing the matters.

11I am not seized of these matters.

Dated at Toronto, this 7th day of July, 2010.