Miller v. Bernard, 2010 HRTO 2313

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jerome Miller Applicant

-and-

Alan Bernard Respondent

AND B E T W E E N:

Alan Bernard Applicant

-and-

London Transit Commission, Andy Hynes and John Ford Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: November 19, 2010 Citation: 2010 HRTO 2313 Indexed as: Miller v. Bernard

1This Interim Decision relates to three Applications: the first (TR-0770-09) was made by Mr. Miller under s.53(5) of the Ontario Human Rights Code R.S.O. 1990, c. H.19, as amended (the Code) dated June 25, 2009 and relates to allegations set out in a complaint filed with the Ontario Human Rights Commission (the "Commission") on January 24, 2006; the second (2009-02782-I) was made by Mr. Miller under s. 34 of the Code and relates to an alleged assault at the "Bus Ball" held on March 21, 2009; and the third (2010-05730-I) was made by Mr. Bernard under s. 34 of the Code and arises out of the termination of his employment with the London Transit Commission.

2The purpose of this Interim Decision is to address a Request for Order filed on behalf of Mr. Miller seeking: (1) to consolidate his two Applications against Mr. Bernard and have them heard together; (2) to defer Application TR-0770-09 pending the outcome of certain criminal proceedings against Mr. Bernard; (3) to obtain disclosure of the Application and Response in Mr. Bernard's Application in order to consider whether to intervene in that proceeding; and (4) to adjourn the hearing in Application TR-0770-09 which is currently scheduled to proceed in London on November 23, 2010.

Request for Consolidation

3I first will address Mr. Miller's request for consolidation of his two Applications against Mr. Bernard. Originally, there were other respondents to these two Applications, including the London Transit Commission and various individual respondents, but Mr. Miller withdrew these Applications as against these other respondents as a result of a settlement reached with the London Transit Commission. As a result, Mr. Bernard is the sole remaining respondent in both Applications.

4The allegations against Mr. Bernard in Application TR-0770-09 are that on or about January 4, 2006, Mr. Bernard talked negatively and unsupportively about Mr. Miller to another employee and on some other occasion spoke ill will towards the applicant to a different employee in relation to the applicant's December 6, 2005 grievance. It is alleged that Mr. Bernard said that the applicant "brings up Black issues and that the company is getting tired of it and has contacted Human Rights to see how they can fire [the applicant] because they don't want to deal with [his] problems anymore". Mr. Miller further alleges that he was advised by fellow employees that Mr. Bernard said that Mr. Miller and the employee who came forward were going to be fired and that the employer was going after them. Mr. Miller states that Mr. Bernard was his direct supervisor, and alleges that these comments poisoned his work environment.

5The allegations against Mr. Bernard in Application 2009-02782-I relate to an alleged assault against Mr. Miller that occurred at the Bus Ball on March 21, 2009, over three years after the events giving rise to the allegations in Application TR-0770-09. Application 2009-02782-I currently has been deferred pending the result of criminal proceedings against Mr. Bernard: see 2010 HRTO 1488.

6In my view, there is simply no proper basis upon which to consolidate these two Applications. While it is true that the parties are the same, the events at issue are separated by over three years and are entirely different in nature. In my view, there are no common issues of fact or law that would warrant consolidation.

7Accordingly, Mr. Miller's request for consolidation is denied.

Request for Deferral

8Mr. Miller's request that Application TR-0770-09 be deferred pending the outcome of the criminal proceeding against Mr. Bernard is denied on the basis that the allegations at issue in this Application do not relate to the factual events underlying the criminal assault charge against Mr. Bernard. Accordingly, there is no basis to support the deferral of Application TR-0770-09.

Request for Disclosure of Materials from Application 2010-05730-I

9Mr. Miller has requested that he be provided with a copy of the Application and Response filed in Application 2010-05730-I so that he can consider whether to intervene in that Application.

10Application 2010-05730-I is an Application brought by Mr. Bernard against the London Transit Commission relating to the termination of Mr. Bernard's employment following the incident that occurred on March 21, 2009 at the "Bus Ball". It is clear that Mr. Miller was a participant in this incident, and should this matter go to a hearing, he may be called as a witness. This does not, however, mean that it would be appropriate to order disclosure to Mr. Miller of materials filed in a proceeding to which he is not a party.

11I also am concerned about the prospect of Mr. Miller's potential intervention in a proceeding involving the London Transit Commission in light of the settlement of Mr. Miller's claims against that Commission.

12In the end, I am not prepared to order disclosure to Mr. Miller of the Application and Response in Application 2010-05730-I.

Request for Adjournment

13The hearing in TR-0770-09 is scheduled to proceed on Tuesday, November 23, 2010. By Request for Order dated November 10, 2010, the applicant sought an adjournment of the hearing on the basis that he had recently retained counsel.

14On November 12, 2010, the Tribunal wrote to the parties to this Application to request the respondent's position on the adjournment request. In response, on November 17, 2010, the respondent opposed the adjournment request on the basis that this matter has been long delayed and the applicant has had ample time to retain counsel. The respondent notes that he also already has served three witnesses with summonses to appear and testify at the November 23 hearing.

15The Tribunal's Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a hearing (. . .) Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.

The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by email or fax, copied to the other parties.

16Application TR-0770-09 was scheduled for hearing by letter from the Tribunal dated May 10, 2010. In that letter, the parties were advised that the hearing would only be re-scheduled for important reasons, such as a previously scheduled medical appointment or court appearance that could not be re-scheduled, and the parties were told to advise the Tribunal within 10 days if they were not available on the scheduled date. No response to this letter was received from the applicant.

17Applicant's counsel states that he was only recently retained and the November 23, 2010 hearing date was only recently brought to his attention. Counsel also states that he will not have sufficient time to prepare for the hearing and was under the impression that Application TR-0770-09 had been deferred. While that may be, that is an issue between the applicant and his counsel and is not a proper reason for adjourning a scheduled hearing date. In my view, the applicant has had ample time to retain counsel to prepare for the November 23 hearing and had a responsibility to properly inform his counsel of the scheduled hearing date and his pre-hearing obligations.

18Applicant's counsel states that the applicant now intends to file additional materials that the Tribunal previously had ordered to be disclosed in its May 10, 2010 letter. These documents were to have been disclosed by no later than May 31, 2010. The applicant shall immediately disclose to the respondent all arguably relevant documents in his possession. Any issue as to the admissibility of these documents into evidence shall be addressed at the hearing.

19Accordingly, the adjournment request is denied and the hearing in Application TR-0770-09 will proceed as scheduled in London on November 23, 2010 commencing at 10:00 a.m.