HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mohamed Husain
Applicant
-and-
Tortoise Restaurant Group, Robert Lefebvre, Terry Campbell, Clarke Lishman, Stuart Beeston, Gail Wright and Chris Ferringo
Respondents
A N D B E T W E E N:
Mohamed Husain
Applicant
-and-
Tortoise Restaurant Group, Jim Lishman, Stuart Beeston and Clarke Lishman
Respondents
interiM DECISION
Adjudicator: Alison Renton
Indexed as: Husain v. Tortoise Restaurant Group
1The applicant filed an Application in Tribunal File No. 2009-02940-I under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), on July 15, 2009 alleging discrimination on the basis of race, ancestry, place of origin, ethnic origin and reprisal in employment. The applicant filed an Application in Tribunal File No. 2009-04407-I under section 34 of the Code on December 16, 2009 alleging reprisal in employment.
2Following an unsuccessful mediation, a Case Assessment Direction (“CAD”) was issued on April 12, 2011 seeking the parties’ submissions on consolidating the two Applications. In the CAD, the Tribunal also noted that it appeared that no Response was filed by Jim Lishman in Tribunal File No. 2009-04407. The Tribunal directed the respondents’ counsel to confirm in writing whether he was representing Jim Lishman.
3The respondents’ counsel filed submissions stating that his clients did not object to the Applications being consolidated. He also stated that with the exception of Chris Ferringo, he represented all of the respondents. He noted that Jim Lishman is not a personal respondent, but would represent him if he were named a personal respondent, and pointed out that the Tribunal’s earlier correspondence to the parties did not identify Jim Lishman as a personal respondent.
4Neither the applicant nor the personal respondent Chris Ferringo filed submissions in response to the CAD and the time for doing so has passed.
Consolidating the Applications
5Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear Applications together.
6In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (C.H.R.T.), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:
(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;
(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and
(c) Whether there are common issues of fact or law.
7In my view, the two Applications should be consolidated and heard together. There are clearly common and overlapping issues of fact and law and there is a public interest in avoiding a multiplicity of proceedings. The respondents, except for Chris Ferringo, have agreed to consolidation and Mr. Ferringo and the applicant have not stated any objections. There is no evidence that consolidating and hearing the Applications together will result in prejudice to any person.
Jim Lishman
8It appears that the Tribunal made an error in identifying the personal respondents when it sent the Application in Tribunal File No. 2009-4407-I to the respondents for Response, as well as in its other communications with the parties. Jim Lishman, Stuart Beeston and “Clark” Lishman are named as personal respondents in Tribunal File 2009-04407, but the Tribunal’s correspondence did not identify Jim Lishman as a personal respondent. The respondents’ counsel has stated that he would also be representing Jim Lishman.
9Accordingly, the Tribunal confirms that Jim Lishman as well as Stuart Beeston and Clark Lishman are named as personal respondents in Tribunal File 2009-04407-I.
10Accordingly, Jim Lishman is given 35 days from the date of this Interim Decision to file a Response if he wishes to file a Response beyond that which has already been filed. If he does not wish to file an additional Response, then the Tribunal directs that within 35 days of the date of this Interim Decision he provide written confirmation to the Tribunal, copying the other parties, that he is adopting the Response that was already filed in Tribunal File 2009-04407-I.
11The Tribunal notes that Clarke Lishman’s first name was spelled differently between the two Applications. Based upon the Response, the Tribunal has amended the spelling of Mr. Lishman’s first name to “Clarke”.
12I am not seized of this matter.
Dated at Toronto, this 7th day of September, 2011.
”Signed by”
Alison Renton
Vice-chair