Santo Barbieri v. Hamilton-Wentworth District School Board, 2010 HRTO 652

Human Rights Tribunal of Ontario

Between:

Santo Barbieri Applicant

-and-

Hamilton-Wentworth District School Board, Ron Mauro, John Horgan and Marg Bowman Respondents

Interim Decision

Adjudicator: David Muir Date: March 25, 2010 Citation: 2010 HRTO 652 Indexed as: Barbieri v. Hamilton-Wentworth District School Board

Reasons for Decision

1This is an Application filed August 15, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2In an earlier Interim Decision, 2009 HRTO 12, I ordered that this Application be deferred pending the outcome of a grievance arbitration dealing with substantially the same issues as contemplated by the human rights complaint underlying the Application.

3On November 30, 2009, the applicant wrote to the Tribunal asking that the hearing be scheduled for the continuation of the case resolution conference on the basis that the arbitration hearing to which the Application was deferred was not proceeding as scheduled. Submissions were received from the parties including correspondence from the applicant, dated March 23, 2010, requesting leave to make further submissions and file more documents on the issue.

4The respondents object to the request of the applicant. The respondents also state that a number of the applicant's grievances as well as this Application were referred to an arbitration panel chaired by Arbitrator Paula Knopf with the consent of all of the parties and the applicant. The respondents further state that an agreement in principal was reached under the direction of the Arbitration Panel. A copy of the settlement was attached.

5The applicant does not dispute that an agreement was reached but there are unresolved issues with respect to implementation of the agreement. The applicant asserts that he has the right to have his Application proceed despite the agreement.

6On the face of it, the settlement deals with a number of grievances as well as this Application. As part of the settlement, monetary compensation including an amount for human rights damages are agreed upon and the applicant has agreed to withdraw this Application. The applicant executed the Memorandum of Agreement. It is not entirely clear what the difficulty is in implementing the agreement. However, the agreement also provides that the Arbitration Panel remains seized with regard to the implementation and finalization of the settlement.

7The respondents state that the Tribunal should decline the applicant's request to schedule a hearing. Alternatively, the respondents state that the Application should be dismissed pursuant to section 45.1 of the Code. In the further alternative, the respondent states that the Application should be further deferred pending the final implementation of the settlement.

8The parties have come to an agreement in principle resolving the issues in dispute in this Application. The Tribunal has concluded in similar circumstances to this that to allow an Application to proceed amounts to an abuse of process. The Tribunal's processes require that no Application that is within the jurisdiction of the Tribunal can be dismissed without entertaining oral submissions.

9I find that the most just, fair and expeditious manner of proceeding is to defer consideration of the parties' requests for 90 days to facilitate the final implementation of the settlement arrived at in November 2009. If at that time the issue remains unresolved, the Tribunal will entertain the respondent's Request that the Application be dismissed pursuant to section 45.1 of the Code because the subject matter has been appropriately dealt with in the grievance proceeding or that it would be an abuse of process to proceed with the Application. The parties are directed to advise with respect to the status of the settlement and the grievance proceeding.

10I am not seized of this matter.