HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Guiseppe Violo
Applicant
-and-
Maple Leaf Sports & Entertainment Ltd. and Kevin Kempcke
Respondents
INTERIM DECISION
Adjudicator: Sherry Liang
Indexed as: Violo v. Maple Leaf Sports & Entertainment Ltd.
1This is an Application filed on May 11, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that his employer discriminated against him on the grounds of disability and age in dismissing him from employment.
2On July 29, 2011, I heard submissions by conference call on the respondents’ request to dismiss the Application under section 45.1 of the Code, or on the basis that it would be an abuse of process to proceed with the Application because it is an improper attempt to re-litigate issues.
3After considering those submissions, I have decided that it is necessary to convene a hearing to consider the request to dismiss.
4The applicant, who was represented by a family friend during the conference call, raises a number of issues that were not previously disclosed. Although the respondents object to the applicant’s ability to raise those issues at this stage, given that he did not provide details of them in his Reply or prior to the conference call, I have decided on balance that he should not be precluded from doing so.
BACKGROUND
5Until July 2009, the applicant was employed by the respondent Maple Leaf Sports & Entertainment (“MLSE”) as an usher. He was employed there since 1983 and was 75 years of age at the time of his dismissal. He was represented in his employment relations by the Teamsters Local Union 847 (the “union”). On July 7, 2009, the applicant’s employment was terminated for excessive absenteeism. The Union filed a grievance, which proceeded to arbitration on January 5, 2010. The arbitrator subsequently dismissed the grievance, in a decision dated January 25, 2010, upholding the discharge.
6In the arbitration decision, the arbitrator states:
The Grievor did not attend at the hearing. He was on vacation and was made aware of the hearing date. In the face of the Employer’s request that the grievance be dismissed on this basis of the Grievor’s failure to attend the hearing, the Union proceeded in his absence.
7In their Response, the respondents submit that the Tribunal should dismiss the Application because the grievance arbitration proceeding has dealt with the substance of the Application. It relies on the arbitration decision, stating, among other things, “[a]lthough the Applicant chose not to attend the arbitration hearing, the union on his behalf raised arguments and requested that the arbitrator consider the attendance issues and absences related to medical issues both pre and post surgery, in determining whether the absence percentage calculation was correctly applied.”
8The applicant was directed to file a response to the request to dismiss, which he did in the form of a Reply. In addressing the issues raised by the respondents, the applicant stated among other things that “I do not agree with the way this matter was dealt and the outcome of the other proceedings. I had major surgery, provided ample medical information to that regard, volunteer to provide further medical information and Company was not interested.”
9During the conference call, in addressing whether the grievance arbitration proceeding appropriately dealt with the substance of the Application, the applicant (though his friend) stated that he had not attended at the arbitration because he was not notified of it by the union. He indicated that, contrary to the statement in the arbitration decision that he was “on vacation”, in fact, he was not, and would not have missed it given the significance of the issues.
10In addition to failing to give him notice of the hearing, the applicant submitted that his case was not handled properly by his union in a number of ways including: failing to provide language interpretation in dealing with him, assigning a representative that did not speak his language (Italian), failing to allow him to submit documentation supporting illness-related absences from work, and generally failing to deal substantively with the issues raised by his grievance.
11During the course of submissions, the applicant’s friend also referred to the fact that the applicant was in possession of further particulars in support of his claim of age discrimination, but did not want to disclose them at this stage.
12As indicated above, counsel for the respondents objected to the new facts that were raised during the conference call. I have considered the prejudice to the applicant in being precluded from raising the facts at this stage, his lack of sophistication and understanding of the legal process, and the prejudice to the respondents in having to respond to the new facts. I have determined that the applicant may rely on the new facts, as long as they are properly particularized so that the respondents may respond.
13With respect to the particulars of the age discrimination claim, I note that the applicant did state in his Application that he believes the respondents treated him differently because of his age. To the extent that the applicant has indicated he has further particulars of this claim, I find it fair to order that he provide these to the respondents.
14The circumstances of this case raise some issues which have not been fully canvassed by the Tribunal previously in considering section 45.1 of the Code and the doctrine of abuse of process. Counsel for the respondents submitted, among other things, that the proper place for the applicant to raise his concerns about the union’s representation of him, and the arbitration process, is before the Ontario Labour Relations Board, through filing a complaint under section 74 of the Labour Relations Act, S.O. 1995, c. 1, Sched. A, as amended (the “Act”). It may be that the applicant could have filed a complaint under that Act, but it is not apparent to me at this stage, and without receiving evidence and further submissions on the matter, that the issues the applicant raises would not be valid considerations for the Tribunal in deciding whether to dismiss the Application under section 45.1 or abuse of process.
15The Tribunal will therefore schedule a one-day hearing in person to consider the request to dismiss. The applicant is directed to provide an affidavit, no later than one month before the hearing, which provides full details of his assertions that the grievance arbitration process did not “appropriately deal with” the substance of this Application, including details of his claims about the fairness of the grievance and arbitration process, the lack of notice to him and the union’s representation of him during the grievance and arbitration process. He must also provide at the same time as providing the affidavit any documents he relies on in support of these assertions. The applicant should be prepared to be cross-examined at the hearing on his affidavit. If he requires language interpretation at the hearing, he must advise the Registrar.
16I stress that the purpose of directing this evidence is not to inquire into the quality of the union’s representation of the applicant, but to consider whether the Application should be dismissed under section 45.1 or as an improper effort to re-litigate the issues in the Application.
17The Union has not sought to intervene in this Application. Given the issues raised by the applicant, I find it appropriate to direct that all materials filed with the Tribunal on these issues be delivered to the Union, in addition to the parties.
18The applicant’s friend raised a question at the conclusion of the conference call about the lack of a transcript of the submissions. I directed him to the Tribunal’s website, which contains resources describing, among other things, the processes at the Tribunal. The Notice of the conference call, sent to the parties on June 2, 2011, also advised the parties to review the Tribunal’s Rules of Procedure, Guides to its processes, and practice directions, available on the website or by contacting the Tribunal. With respect to the recording of hearings, the Practice Direction on Recording Hearings states that the Tribunal does not normally record or transcribe its proceedings.
19In the result, I direct as follows:
The Tribunal will schedule a one-day hearing in person to receive the evidence and submissions of the parties on the respondents’ request to dismiss the Application under section 45.1 of the Code or as an abuse of process;
No later than one month prior to the hearing, the applicant will deliver to the respondents and the Union, and file with the Tribunal, an affidavit setting out all the facts he relies on in relation to his assertions about the fairness of the grievance and arbitration process and the union’s representation of him during the grievance and arbitration process. He will attach to the affidavit all the documents he relies on with respect to these issues;
By the same date, the applicant will deliver to the respondents and the Union, and file with the Tribunal, particulars of his claim of age discrimination, including the time and place of any relevant conversations or events, and the persons involved;
By the same date, the applicant will deliver to the respondents and the Union, and file with the Tribunal, witness statements describing the evidence of any additional witnesses who he will call to give evidence at the hearing on the issues of section 45.1 and abuse of process;
By the same date, the applicant will advise the Tribunal’s Registrar whether he requires language interpretation at the hearing;
No later than two weeks before the hearing, the respondents will deliver to the applicant and the Union, and file with the Tribunal, witness statements describing the evidence of any witness who they will call to give evidence on these issues, as well as any documents they intend to rely on.
A copy of this Interim Decision will be sent to the Union as well as the parties.
20I am seized of this matter.
Dated at Toronto this 3rd day of August, 2011.
“Signed by”
Sherry Liang
Vice-chair