Human Rights Tribunal of Ontario
B E T W E E N:
Bebe DeFreitas
Applicant
-and-
Ontario Public Service Employees Union and Warren Thomas
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: DeFreitas v. Ontario Public Service Employees Union
1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code) filed on April 6, 2010 (the “s. 34 Application”). A prior Application previously had been filed by the applicant pursuant to the transitional provisions of the Code, which is dated February 12, 2009 (the “transitional Application”).
2The purpose of this Interim Decision is to address the applicants’ request that these two Applications be consolidated and heard together. I will also address the next steps for proceeding with these matters.
Consolidation
3In my last Interim Decision in this matter dated October 18, 2010, 2010 HRTO 2049, I established a schedule to receive written submissions from the parties on the consolidation issue. The applicant served and filed her submissions on November 1, 2010. The respondents were to have filed their submissions in response by November 15, 2010, but apparently due to a mishap at the office of respondents’ counsel, counsel was not aware that the applicant’s submissions had been served. Once discovered, the respondents agreed to file their submissions by no later than November 24, 2010. No such submissions were received from the respondents.
4The test for consolidation has been set out in Persaud v. Toronto District School Board, 2008 HRTO 25 as follows:
I adopt from the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway 2002 CanLII 45928 (C.H.R.T.), 2002 CanLII 45928, the following factors that should be considered in the context of whether to consolidate or hear two proceedings together:
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;
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
Whether there are common issues of fact or law.
5It is evident in the instant case that there are common issues of fact and law. As discussed in my last Interim Decision, the allegations of racial discrimination and reprisal raised in the transitional Application form part of a series of incidents that continued into the allegations raised in the section 34 Application. The parties involved are the same, the underlying work context is the same, the grounds of discrimination alleged are the same, and the general nature of the alleged discrimination is similar.
6In my view, the public interest in avoiding a multiplicity of proceedings also mitigates in favour of consolidation, as many of the same witnesses will be required to testify in relation to the allegations raised in both Applications. Consolidation also will reduce the need for repetition of background or contextual evidence, and will avoid the possibility of inconsistent results.
7No prejudice has been alleged by the respondents arising out of the applicant’s request for consolidation, nor is any prejudice apparent. While consolidating these two Applications will undoubtedly lengthen the amount of evidence that needs to be heard in one proceeding, this in my view is preferable to having two separate proceedings and the resulting delay and duplication of evidence.
8Accordingly, the applicant’s request for consolidation of these two Applications is granted.
Case Management
9I will now proceed to direct that this matter be scheduled for hearing. Once the Notice of Hearing has been issued, the parties will have 21 days to make mutual disclosure of all additional arguably relevant documents in relation to the allegations raised in the s. 34 Application in accordance with Rule 16.1of the Rules of Procedure for s. 34 applications.
10Consistent with the directions I gave regarding the Transitional Application, in the first phase of the hearing, I wish to hear evidence relating directly to the applicant’s allegations and do not at this time wish to hear evidence regarding broader systemic or workplace culture issues. Accordingly, at least 45 days before the first scheduled day of hearing, the applicant is directed to deliver and file complete statements of all of her evidence and of the evidence of any witnesses she intends to call directly relating to the allegations she has made in the s. 34 Application, and she also shall deliver and file at that time all documents relating to the s.34 Application upon which she intends to rely at the hearing.
11By no later than 30 days prior to the first scheduled day of hearing, the respondents shall deliver and file complete statements of all of the evidence of the witnesses they propose to call at the hearing in response to the applicant’s allegations in the s. 34 Application, and all documents relating to the s. 34 Application on which they intend to rely at the hearing.
12These directions stand in place of the pre-hearing obligations under Rules 16 and 17.
13I understand that issues previously have been raised by the applicant regarding the proposed evidence of some of the respondents’ witnesses. If the applicant intends to pursue these issues or any other issues relating to the respondents’ proposed evidence, the applicant shall raise such issues by serving and filing a Request for Order (Form 10) within 10 calendar days after receiving the respondents’ pre-hearing materials and the respondents shall respond in accordance with Rule 19.
Dated at Toronto, this 7th day of December, 2010.
“Signed By”
Mark Hart
Vice-chair