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 B E T W E E N:
Frank Paterno
Applicant
-and-
The Salvation Army, Centre of Hope
Respondent
AND B E T W E E N:
Frank Paterno
Applicant
-and-
The Salvation Army, Mary-Ellen Jacobs, William Francis and Lee Graves
Respondents
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Date: October 4, 2010
Citation: 2010 HRTO 2021
Indexed as: Paterno v. Salvation Army
WRITTEN SUBMISSIONS BY
Frank Paterno, Applicant ) On his own behalf
The Salvation Army, Centre of Hope, )
The Salvation Army, Nancy Kerr, ) Elizabeth Traynor,
Nancy Powers, Mary-Ellen Jacobs ) Counsel
William Francis and Lee Graves, Respondents )
[1] The 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.
[2] The respondents filed Responses to the Applications, which deny the allegations of discrimination.
[3] On June 21, 2010, the Tribunal issued an Interim Decision, [2010 HRTO 1388](https://www.minicounsel.ca/hrto/2010/1388), which requested written submissions from the parties as to whether the Tribunal should consolidate the three Applications, and whether it is appropriate for the Tribunal to defer consideration of the Applications pending the conclusion of a grievance proceeding.
[4] Both parties filed submissions, but on July 13, 2010 the deferral issue was rendered moot by the release of an arbitration decision with respect to the applicant’s grievances.
[5] On July 28, 2010, the respondents requested that the Tribunal dismiss the Applications on the basis that the arbitration decision appropriately dealt with the substance of the Applications.
[6] On August 10, 2010, the applicant filed a response to the request, which denied that the arbitration decision appropriately dealt with the substance of his Applications.
[7] The first issue to address is whether the Tribunal should consolidate the three Applications.
[8] Rule 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.
[9] In Persaud v. Toronto District School Board, [2008 HRTO 25](https://www.minicounsel.ca/hrto/2008/25), the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, [2002 CanLII 45928 (CHRT)](https://www.canlii.org/en/ca/chrt/doc/2002/2002canlii45928/2002canlii45928.html), 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.
[10] Both parties submitted that the Tribunal should consolidate the three Applications.
[11] In my view, the Applications should be consolidated. There are clearly common and overlapping issues of fact and law, and a public interest in avoiding a multiplicity of proceedings. Furthermore, there is no evidence that consolidating the Applications will result in prejudice to any person.
[12] The Tribunal therefore orders that the three Applications be consolidated.
[13] The second issue to address is the respondents’ request that the Tribunal dismiss the Application on the basis that the arbitration decision appropriately dealt with the substance of the Applications.
[14] Section 45.1 of the Code gives the Tribunal the discretion to dismiss an application that has been appropriately dealt with in another legal proceeding:
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.
[15] Rule 22 of the Tribunal’s Rules of Procedure provides:
22.1 The Tribunal may dismiss part or all of the Application where it determines, under section 45.1 of the Code, that another proceeding has appropriately dealt with the substance of part or all of an Application.
22.2 The parties will have the opportunity to make oral submissions before the Tribunal dismisses an Application under Rule 22.1.
[16] In the circumstances, the Tribunal’s Registrar will schedule a teleconference to hear oral submissions from the parties with respect to this issue.
[17] If any party wishes to rely on case law or other supporting material at the teleconference hearing, they are directed to deliver this material to each other and the Tribunal by no later than two weeks before the date of the hearing.
[18] I am not seized of this matter.
Dated at Toronto, this 4th day of October, 2010.
“Signed by”
Ken Bhattacharjee
Vice-chair