Kenneth Bruce v. Greater Essex County District School Board and Robert Colak, 2010 HRTO 731

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenneth Bruce Applicant

-and-

Greater Essex County District School Board and Robert Colak Respondents

INTERIM DECISION

Adjudicator: Mary Truemner Date: April 1, 2010 Citation: 2010 HRTO 731 Indexed as: Bruce v. Greater Essex County District School Board

WRITTEN SUBMISSIONS BY

Kenneth Bruce, Applicant ) On his own behalf Greater Essex County District School Board ) Suzanne Porter, Counsel and Robert Colak, Respondents )

1The applicant filed an Application on March 19, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It alleges reprisal contrary to the Code on the basis of incidents in February 2009.

2This Interim Decision will address the status of the deferral of the Application and provide case management directions.

Background

3In an Interim Decision released on October 9, 2009, 2009 HRTO 1650, I deferred the Application pending the Tribunal’s decision on whether reprisal allegations identical to those raised in this Application would be addressed in ongoing section 53(3) Applications also before the Tribunal (the “s.53 Applications”). The Tribunal agreed to reconsider the Interim Decision pursuant to the applicant’s request, and the parties filed submissions on the issue.

4On February 4, 2010, the Tribunal issued a Case Resolution Conference Decision dismissing the s.53 Applications for delay: 2010 HRTO 261. The Case Resolution Conference Decision did not address the reprisal allegations on their merits but did, however, address the applicant’s argument that the alleged reprisals amounted to ongoing discrimination and therefore the s.53 Applications were not untimely. The Tribunal rejected that argument as follows:

I am also of the opinion that the applicant’s contention that there have been continuing reprisals does not constitute a reasonable explanation for filing his complaint at the Ontario Human Rights Commission in 2007, almost four years after his employment was terminated. The question at issue is whether there was a series of incidents between October 24, 2003 and April 24, 2007 when the human rights complaint was filed at the Commission which delayed the applicant from filing his complaint within the one-year limit. There is no evidence that there were. The incidents the applicant now seeks to rely on to explain the delay between 2004 and 2007 all occurred in 2009. They cannot be used as a justification for late filing. (at para. 22)

Status of the Deferral

5With the dismissal of the s.53 Applications, there is no longer any need to decide whether this Application should be deferred. It may now proceed.

Adding Respondents

6The applicant seeks to add Sergeant Paul Smith and the Amherstburg Police Service as respondents to this Application. There is no indication that the applicant has provided the parties he seeks to add with notice of his request. The applicant is therefore ordered to serve the Amherstburg Police Service and Sergeant Paul Smith with all pleadings exchanged between him and the respondents with respect to this Application and to file Statements of Delivery with the Registrar.

7The respondents were uncertain whether the Tribunal wished to receive their submissions on the applicant’s Request given the outstanding issue of deferral. As that issue has been resolved, the respondents are directed to file with the Tribunal, and to deliver to the applicant and the proposed additional parties, their submissions on the Request to add respondents by April 12, 2010.

Request to Dismiss

8The Tribunal also wishes to address the respondents’ Request to dismiss this Application on the basis that it is barred pursuant to s.53(5), or, in the alternative, pursuant to s.53(8) of the Code.

9While the parties have provided submissions on the issue, the respondents have not addressed the effect, if any, of the Case Resolution Conference Decision on the Request to Dismiss. The applicant has provided some comments in his correspondence to the Tribunal on March 26, 2010. In the circumstances, I will allow the parties to file any further submissions they may wish the Tribunal to consider before determining the respondents’ Request. The respondents may file with the Tribunal and deliver to the applicant their submissions by April 12, 2010. The applicant may file with the Tribunal and deliver to the respondents’ counsel his submissions by April 16, 2010.

10I am not seized.