Paterno v. Salvation Army, 2010 HRTO 2397

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 -

Ontario Human Rights Commission

Intervenor

AND B E T W E E N:

Frank Paterno

Applicant

-and-

The Salvation Army, Centre of Hope

Respondent

-and-

Ontario Human Rights Commission

Intervenor

AND B E T W E E N:

Frank Paterno

Applicant

-and-

The Salvation Army, Mary-Ellen Jacobs, William Francis and Lee Graves

Respondents

-and-

Ontario Human Rights Commission

Intervenor

INTERIM DECISION

Adjudicator: David A. Wright

Date: December 2, 2010

Citation: 2010 HRTO 2397

Indexed as: Paterno v. Salvation Army

WRITTEN SUBMISSIONS

Frank Paterno, Applicant ) On his own behalf

The Salvation Army, Nancy Kerr, Nancy Powers, ) Elizabeth Traynor,

Mary-Ellen Jacobs, William Francis, and Lee Graves, ) Counsel

Respondents )

Ontario Human Rights Commission, Intervenor ) Cathy Pike, Counsel )

1This Interim Decision addresses two issues that have arisen since the Tribunal’s previous Interim Decisions in this matter: 2010 HRTO 2010 and 2010 HRTO 2044 scheduling a conference call hearing on the issue of whether an arbitration decision appropriately dealt with the substance of these Applications within the meaning of s. 45.1. The conference call hearing is scheduled for January 7, 2011.

2The Ontario Human Rights Commission seeks leave to intervene. This Request is unopposed and the Commission’s reasons are well-founded. The Request is granted. A copy of the Notice of Hearing shall be sent to the Commission with this Interim Decision and the Commission shall confirm, within 7 days, whether it intends to participate in the oral hearing or rely upon written submissions.

3Second, the applicant seeks production of the following:

a) any and all correspondence and/or files between the Salvation Army Territorial Headquarters, Divisional Headquarters and the Centre of Hope addressed to all Respondents, or any other Salvation Army staff, regarding and surrounding his termination on September 21, 2009 not submitted or disclosed at the 2009 arbitration hearing; and

b) any and all correspondence and/or files by any staff of the Salvation Army leading up to his September 21, 2009 termination, not submitted or disclosed at the 2009 arbitration hearing, regarding the applicant’s gender and creed discrimination allegations.

4The applicant argues that the issue of undisclosed documents whose existence, he says, was established at the grievance hearing will help prove that the substance of the Applications was not appropriately dealt with by the arbitration. He states that the first category of documents relates in particular to his reprisal complaint, file 2010-05198-I.

5The respondent Salvation Army opposes the production request, arguing that the applicant an opportunity to fully address issues related to the alleged termination, including the production of documents, during the arbitration hearing at which he was represented by union counsel. It states that the applicant never alleged reprisal following the termination of his employment. Finally, it argues, “to the extent that any documents that may exist were not provided during the grievance arbitration process, they would not be relevant to the issues to be heard by the Tribunal on January 7, 2011”.

6The applicant’s production request is granted. The test for production is arguable relevance, which is a low threshold. The Tribunal’s jurisprudence on the meaning of “appropriately dealt with” under s. 45.1 is developing. It is arguable that the nature or content of documents that were undisclosed during the arbitration may affect the Tribunal’s analysis. Accordingly, I find that the documents sought by the applicant are arguably relevant.

7The respondent shall, within 7 days of the date of this Interim Decision, produce to the applicant and intervenor any documents falling within the categories requested by the applicant or advise them that there are no such documents.

8The parties shall deliver to each other and file with the Tribunal any documents upon which they intend to rely during the hearing no later than December 29, 2010.