Banigan v. Sheridan College Institute of Technology, 2010 HRTO 631

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Banigan

Applicant

-and-

Sheridan College Institute of Technology and Advanced Learning

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: March 23, 2010

Citation: 2010 HRTO 631

Indexed as: Banigan v. Sheridan College Institute of Technology

1This is an Application dated June 8, 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission on April 8, 2007 (the “complaint”). The purpose of this Interim Decision is to address the parties’ submissions respecting the scope of the allegations in the complaint and to ensure that the hearing of this matter proceeds in an orderly manner.

2The essential allegation in the complaint is that the applicant has been subject to reprisal by the respondent for having filed prior human rights complaint. The allegations of reprisal are largely in reference to a number of applications for employment with various Community College employers going back over 20 years that the applicant alleges were influenced either directly or indirectly by the respondent. Other allegations are made with respect to other events including the termination of the applicant’s employment with the respondent in 1985.

3Following a case management discussion with the parties on December 3, 2009, by letter dated December 7, 2009, the applicant was directed to provide the following:

• specific details regarding each job or position that he applied for where he is alleging that he experienced reprisal by Sheridan College, including the date when each application was made, the institution or organization applied to, the outcome or result, and any specific details apart from denial of the job or position that the Applicant relies upon in support of his allegation of reprisal; and
• if there are any other specific allegations of reprisal being made against Sheridan College, the Applicant also will provide specific details of each alleged incident of reprisal, including the date when each incident occurred, what happened, and why he is alleging reprisal in respect of that incident.

4In the same letter, the respondent was directed to file a TR-4 Request for Order During Proceeding (Request) seeking the dismissal of some or all of the Application on the basis of delay or any other applicable ground and a schedule of submissions was established for the parties.

5The applicant, by letter dated December 7, 2009 provided a list of applications for employment made with various employers, largely Ontario community colleges from one year prior to the complaint being filed to date. The applicant also makes reference to a large number of other applications for positions in the Ontario community college system from the early 1980’s to 2006. In a letter to the Tribunal, dated December 14, 2009, the applicant provided further general allegations of reprisal by the respondent since August 27 1986. These allegations are largely related to events in the 1980’s and 1990’s. Again, the applicant raises issues with respect to events from the 1980’s and 1990’s that seem to relate to the termination of his employment in 1985.

6Pursuant to the Tribunal’s case management direction, the respondent filed a Request seeking the dismissal of significant elements of the Application as follows:

a. Dismissal of all allegations which relate to three previously filed complaints which were dismissed by the Commission.

b. Dismissal of all allegations of the Applicant which contradict the findings of Arbitrator Owen Shime dated April 21, 1989.

c. Dismissal of all allegations of the Applicant which occurred prior to April 8, 2006, being one year prior to the filing of the complaint forming the subject matter of this Application.

d. Dismissal of the Application on the basis that it does not disclose a prima facie case.

Order Dismissing Allegations Relating to Complaints Previously Dismissed by the Human Rights Commission

7The respondent states that the allegations in the instant Application in large part related to three previous complaints made by the applicant against the respondent and dismissed by the Commission. The respondent also states that in each instance the applicant sought reconsideration, in the first two the request was dismissed and in the third the request was found to be untimely and was rejected on that basis.

8The respondent relies upon section 53(8) which provides as follows:

No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

9Under section 53(8) of the Code, the Tribunal lacks jurisdiction to accept an application in circumstances where the allegations contained in the application constituted the subject-matter or substantially the same subject-matter of a complaint previously filed with the Commission under the old Part IV of the Code.

10Without elaborating them in any great detail, it is clear that many of the allegations made by the applicant in the instant Application have been the subject matter of prior complaints. Although it is not clear how it relates to the subject matter of the reprisal complaint underlying this Application, a significant issue for the applicant appears to be the circumstances surrounding his termination by the respondent in 1985. Complaint 50-352B dated August 27 1986 alleged discrimination on the basis of sex and harassment in reference to, amongst other allegations, the termination of his employment in 1985.

11Complaint 50-648N, dated July 19 1991, alleges reprisal by the respondent in response to a prior complaint, amongst other allegations. Similarly in complaint NMYS-TD8YH dated September 4, 1998, the applicant alleged reprisal for prior human rights complaints by the respondent in reference to amongst other allegations, a number of unsuccessful applications for positions at the College. The respondent points out that in the Case Analysis by Commission staff, it is noted that the applicant alleged that he had been “unsuccessful in securing employment as a result of the respondent conspiring to blacklist him”. As noted previously, these three complaints were not referred to a Board of Inquiry and the files were closed by the Commission.

12The applicant takes issue with the respondent’s characterization of the disposition of these prior complaints at the Commission as being dismissed. The applicant states that they were not dismissed but closed. The distinction between a complaint being dismissed or the file being closed without reference to a Board of Inquiry is a distinction without a difference. Section 53(8) does not make reference to the disposition of a prior complaint but rather is framed in terms of the subject matter of the Application being the same or substantially the same as the subject matter of a previous complaint. There can be no doubt that the applicant in the current Application has raised a number of allegations that have been raised in prior complaints. Accordingly, the Tribunal has no jurisdiction to consider those allegations in the Application.

Request for Dismissal of allegations contradicting the findings of Arbitrator Shime

13The respondent seeks an Order dismissing allegations by the applicant which contradict findings made by Owen Shime, who presided at an arbitration concerning the applicant’s dismissal or termination from employment by the respondent in 1985. In the result, Arbitrator Shime concluded that the termination of the applicant was justified. In the course of doing so, he made a number of findings that the applicant takes issue with as follows:

a. That the standard by which the applicant’s dismissal or termination should be measured was “just cause”.

b. That the dismissal was justified based on that standard.

c. That the Arbitrator concluded the applicant was “rude arrogant and uncooperative with others.”

14The respondent states that to allow the applicant to re-litigate these issues would amount to an abuse of process. The applicant states that Arbitrator Shime did not conclude that the applicant had been terminated for just cause. The applicant also states that the finding that the applicant was at times “rude, arrogant and uncooperative with others” is hearsay based on a fabricated document and has nothing to with the issue of just cause.

15The respondent relies upon Deesasan V. Toronto Police Services Board, 2009 HRTO 687 (“Deesasan”) for the proposition that the Tribunal has applied the doctrine of abuse of process to prevent a party from re-litigating issues at the Tribunal which have been determined previously by another adjudicator. The applicant states that Arbitrator Shime was an arbitrator and “not a judge, and an arbitration hearing is not a court”. The applicant relies upon a statement of disagreement which he wrote in response to the decision of Arbitrator Shime which he states was required by law to be attached to the Arbitrator’s award. I have reviewed this document and while it sets out the applicant’s disagreements about the decision of the Arbitrator, it has no bearing on the outcome of the arbitration hearing or the reasons of the Arbitrator.

16There is little doubt that a significant element of this case amounts to a collateral attack on the Shime Arbitration award and the findings made at that time. For example, the allegation that the applicant was at times rude, arrogant and uncooperative forms a significant element of the narrative in the applicant’s various submissions. Equally the suggestion that the arbitrator concluded that the he was dismissed for just cause is disputed by the applicant and is said to be relevant in this proceeding.

17I agree with the conclusion reached in Deesasan, above, and find that any attempt to re-litigate conclusions reached by Arbitrator Shime would amount to an abuse of process. The arbitrator heard evidence and submissions from the parties including the applicant and came to certain factual conclusions with which the applicant disagrees. The decision of the Arbitrator is clear and unambiguous. More to the point its result and conclusions are for purposes of this Application binding on the parties. Accordingly, I find that the applicant is prevented from alleging that he was unjustly dismissed by the respondent college in 1985 and any evidence with relation to his termination is inadmissible for that purpose. It is also entirely clear from a fair reading of the Arbitrator’s decision that the termination of the applicant was found to be justified on a just cause standard amongst other reasons because the applicant was at times rude arrogant and uncooperative. These and any other allegations that are contrary to any conclusions reached by the Arbitrator are not properly raised in this Application.

Delay

18The respondent states that allegations of events prior to one year before the complaint was filed with the Commission should be dismissed for delay. The applicant states that all past evidence has been accepted by the Commission including allegations going back to 1984. I also note at this point that many of these dated allegations have already been dealt with in the various determinations above.

19Section 34(1) and (2) provide:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

20Neither party made submissions on this point but the Tribunal has on several occasions interpreted the application of section 34 to Transitional Applications as requiring that the complaint be filed within one year of the last incident or within one year of the last of a series of incidents.

21I agree with the respondent that the bulk of the applicant’s allegations are significantly out of time. The essence of the complaint of the applicant is that he has been prevented from obtaining employment in the College sector because of some unspecified actions of the respondent and that this constitutes a reprisal. Other than reference to several dozen applications over the past 25 years, there are no particulars provided from which it might be inferred that these are a series of incidents within the meaning of the section. The lack of particulars makes it entirely unclear when many of these applications are alleged to have been made. However, it does appear that the last application made prior to the one year period leading to the complaint was in 2003. Accordingly I would find that even if these allegations could be seen as a series of incidents, I find that there was in excess of two years of delay between that allegation and the alleged application for a position in April 2006 and as a result the series of incidents would have been interrupted.

22The applicant offered no explanation for the delay in only filing this complaint when he did and made no submission with respect to the prejudice to the respondent in having to respond to events alleged to have occurred largely in the 1980’s and 1990’s. Accordingly, I find that only those allegations listed in the applicant’s letter of December 7, 2009, in particular those numbered 1 to 13 being allegations of unsuccessful applications for employment made between April 24, 2006 and the date the complaint was filed can be adjudicated by the Tribunal.

23The allegations numbered 14 to 18 in the applicant’s letter of December 7, 2009 are also dismissed as they relate to incidents after the complaint was filed. Rule 12.3 of the Tribunal’s Rules for Transitional Applications under Section 53(3) and 53(5) of the Code provides as follows:

12.3 Section 53(5) Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission.

12.4 Where an Applicant wishes to add parties, combine two or more complaints to be dealt with together as a single application, or, having regard to Rule 12.3, amend the complaint, the Applicant may identify any such requests in their Application.

24Although the Rules respecting section 53(3) and 53(5) are not identical in that preliminary requests to add parties or amend the subject matter of the complaint would not be entertained in a section 53(3) Application, it remains that Rule 12 contemplates that a section 53(5) Application will be based on the subject matter of the complaint that was before the Commission.

25Generally speaking, a section 53(5) Application will be limited to the subject matter of the complaint made to the Commission and the Tribunal will only exercise its discretion to allow amendments where it is necessary to ensure to the fair, just and expeditious disposition of the Application. I am not satisfied based on the material filed that it is necessary to the fair, just and expeditious resolution of the Application to allow the applicant to expand the subject matter of this Application by adding new allegations of incidents occurring after the complaint was filed with the Commission.

Dismissal for No Prima Facie Case

26The respondent states that the Application should be dismissed on the basis that the pleadings (the complaint) present no prima facie case. The scope of the allegations to be considered is narrowed as a result of my conclusions set out above. At this stage the remaining allegations consist of a listing of job applications made by the applicant which was provided to the Tribunal in the applicant’s letter, dated December 7, 2009. The applicant states that this list of his applications and an analysis of his qualifications are sufficient to establish a prima facie case. The applicant further states that it is likely the case that there is an unofficial grapevine over which circulates an extremely biased version of his case by which he appears to be referring to the Shime Arbitration. The applicant also states that it certainly looks as if there is a problem if no College has offered the applicant anything other than temporary work since 1992.

27Section 43 of the Code requires that the Tribunal’s Rules provide that no Application that is within its jurisdiction be dismissed without the parties being afforded an opportunity to make oral submissions. Accordingly, the parties are directed, within 14 days of the date of this decision, to provide their available dates in August 2010 for a one day hearing to consider the respondent’s motion to dismiss on the basis that there is no prima facie case to respond to. The parties should also be prepared to lead evidence on the merits should that be required in the discretion of the member presiding at the hearing.

Order

28The Tribunal makes the following Orders:

a. The Application will proceed to hearing on the respondent’s motion to dismiss in respect of the allegation that the applicant has been subject to reprisal by the respondent, the particulars being the unsuccessful job applications made between April 24, 2006 and the date of the complaint.

b. All the other allegations are dismissed for the reasons set out above.

29I am not seized.