DeFreitas v. Ontario Public Service Employees Union, 2010 HRTO 618

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

Date: March 22, 2010

Citation: 2010 HRTO 618

Indexed as: DeFreitas v. Ontario Public Service Employees Union

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, dated February 12, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on April 16, 2008.

2The hearing in this matter commenced on February 2, 2010 and further hearing dates have been scheduled for April 13 and 16 and May 14, 2010.

3The purpose of this Interim Decision is to address the applicant’s request for the amendment of her Application to deal with events occurring subsequent to the filing of her underlying human rights complaint, and to provide case management direction regarding the conduct of the hearing in this matter.

Request for Amendment

4The applicant has filed a Request for Order seeking to amend her Application to deal with events occurring subsequent to the filing of her underlying human rights complaint on April 16, 2008.

5These matters already were the subject of my ruling at the hearing on February 5, 2010 regarding the proper scope of the Application, as set out in my prior Interim Decision, dated February 8, 2010, 2010 HRTO 281. The issue addressed in that Interim Decision was the proper scope of the Application, in light of this Tribunal’s jurisdiction over applications filed under the transitional provisions in s. 53 of the Code which restricts these applications to the “subject matter of the complaint” filed at the Commission. In this Interim Decision, I also address Rules 12.3 and 12.4 of the Tribunal’s Transitional Rules, which address the proper scope of a transitional application and the restriction on permissible amendments to a transitional application.

6The case law cited by the applicant in support of her request for amendment of her Application all pre-dates the changes to the human rights system which became effective on June 30, 2008. Prior to that time, once a complaint had been referred to the Tribunal by the Commission, the Tribunal’s case law permitted amendments to be made to the complaint in certain circumstances to raise post-complaint events, in light of the reality that the only other option for a complainant in such circumstances would be to go back to the start of the process and file a further human rights complaint with the Commission with no assurance if and/or when this subsequent complaint ever would be referred to the Tribunal for a hearing.

7Under the current system, applications are filed directly with the Tribunal and no longer have to go through a pre-referral investigative process at the Commission. As a result, as indicated to the applicant in my prior Interim Decision, the appropriate process under the current scheme to address post-complaint events is for her to file a new application pursuant to s. 34(1) of the Code. If she wants these post-complaint allegations to be heard together with the allegations that form the subject matter of her transitional Application, then the appropriate procedure, once a new application has been filed, is for her to request that the two applications be consolidated and heard together pursuant to the Tribunal’s Rules.

8What the applicant cannot do, as explained in my prior Interim Decision, is seek to amend her transitional Application to address post-complaint matters which I have already found are beyond the “subject matter of the complaint” within the meaning of s. 53(5) of the Code and the Tribunal’s Transitional Rules. As a result, the applicant’s request for amendment is denied.

Case Management

9In my prior Interim Decision, I indicated that I was considering exercising my powers under the Rules to direct all parties first to present all of their evidence that bears directly upon the events giving rise to the allegations at issue in the proceeding before considering the potential relevance of the broader systemic evidence that the applicant proposes to call.

10Prior to deciding whether to exercise this power, I invited submissions from the parties. Submissions were filed by the applicant opposing how I proposed to exercise this power. No submissions were received from the respondents.

11The applicant submits that evidence for the individual allegations in this case should be examined holistically and within a systemic context. She states that the bifurcation of individual and systemic evidence results in the individual evidence taking on a very different form. The applicant further submits that it is very difficult to “prove” that racism is a factor shaping individual events when incidents are examined in isolation from a pattern of practices that constitutes systemic discrimination. She states that in the absence of a systemic context, the respondents may misunderstand that their intent is paramount and not the impact of their leadership behaviours in combination with organizational practices.

12I agree with the applicant regarding the importance, particularly in cases alleging racial discrimination, of not examining individual allegations in isolation from the surrounding context. I also agree that the applicant is not required to prove an intent to discriminate, but that the focus in a case of this nature is upon the impact of the respondents’ actions upon her and whether race was a factor in the actions taken and decisions made that are at issue in this proceeding.

13However, when proceeding with a case of this nature, there is always a tension between focusing on evidence that is directly related to the allegations at issue and the scope of relevant evidence regarding the broader institutional context in which these events took place. The danger inherent in simply opening the hearing room doors to hear a broad range of such contextual evidence is that it may cause the hearing to become sidetracked by collateral issues as the respondents necessarily have the right to call evidence to rebut the broader contextual evidence that the applicant seeks to adduce. To a certain extent, this is an inevitable by-product of an appropriate analysis of a racial discrimination case, where the surrounding context needs to be considered. However, there is a balance that needs to be struck regarding how much of such contextual evidence is relevant to and necessary for the determination of the allegations that I am called upon to make.

14I do not agree that simply bifurcating the hearing of the evidence to first hear all evidence directly relevant to the applicant’s individual allegations prior to hearing any evidence regarding the broader institutional context would result in the individual evidence taking on a different form. The evidence is the evidence, and will be received in the same form whether I first hear evidence regarding the individual allegations or whether I hear all evidence at the same time. What is different is that I would first hear all of the evidence from all parties directly relating to the applicant’s allegations prior to assessing the relevance of and necessity for the broader institutional evidence. In my view, hearing this individual evidence first will serve to provide me with a better framework to assess the potential relevance of and necessity for the broader institutional evidence.

15As a result, having carefully considered the applicant’s submissions, my ruling is that I will proceed first to hear evidence from all parties regarding the applicant’s individual allegations which I have found form the subject matter of this Application. Once I have completed hearing all of this evidence, I will then hear submissions from the parties regarding the relevance of and necessity for the broader institutional evidence that the applicant seeks to adduce, prior to making a determination of this matter.

16I also have received and reviewed the detailed witness statements submitted by the parties. In light of my rulings in my prior Interim Decision and in this Interim Decision, I will first hear evidence from the applicant’s witnesses as follows:

a) Bebe DeFrietas – not including sections X, Y, Z, AA and Systemic Evidence;

b) Barb Thomas – not including Evidence: Systemic Discrimination;

c) Twila Marston – not including Evidence: Systemic Discrimination;

d) Roger Haley – not including Evidence - Systemic Discrimination, OPSEU’s Employment Practices;

e) Jim Gilbert – subject to any stipulation by the respondents;

f) Mary Ellen Cassey – subject to any stipulation by the respondents;

g) Stephen Giles – subject to any stipulation by the respondents;

h) Tim Brown – not including Evidence - Systemic Discrimination;

i) Glenna Caldwell – all evidence;

j) Gord Longhi – not including Evidence: Systemic Discrimination;

k) Charlene Tardiel – not within scope of transition application;

l) Terry Moore – all evidence.

17It is my expectation that hearing the applicant’s evidence on April 13, 2010 will take at least the morning. The applicant should have her next three witnesses available to testify as of 12:30 p.m. on that day.