Wright v. International Alliance of Theatrical Stage Employees, 2011 HRTO 853

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dudley Wright

Applicant

-and-

International Alliance of Theatrical Stage Employees and Canada Local 873, Robert DaPrato and Robert Hall

Respondents

DECISION

Adjudicator: Sunil Kapur

Date: May 2, 2011

Citation: 2011 HRTO 853

Indexed as: Wright v. International Alliance of Theatrical Stage Employees

APPEARANCES

Dudley Wright, Applicant ) Self-represented

International Alliance of Theatrical Stage Employees ) Bernard Fishbein, Counsel and Canada Local 873, Robert DaPrato and ) Robert Hall, Respondents )

INTRODUCTION

1This is an Application filed pursuant to s. 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination with respect to membership in a vocational association because of ancestry, colour and place of origin. An Interim Decision dated December 18, 2009, 2009 HRTO 2229, clarified the scope of the Application.

2This Decision addresses the respondents’ Request to dismiss the Application on the following grounds:

(i) the applicant did not file the Application in accordance with the requirements of s.53(5); and

(ii) the substance of the allegation has already been dealt with by the Ontario Labour Relations Board.

BACKGROUND

3The respondent union represents workers in numerous branches of the entertainment industry. The individual respondents, Mr. DaPrato and Mr. Hall, were at relevant times officials with the respondent union.

4The applicant’s allegations can be summarized as follows:

(i) the applicant alleges that he was improperly reassigned from the site of the Jumper movie production on September 8, 2006;

(ii) after being reassigned back to the Jumper movie production on September 12, 2006 the applicant alleges that Mr. Daprato threatened him with a “throat cutting gesture”;

(iii) the applicant alleges that after the September 12, 2006 altercation with Mr. Daprato he was unfairly suspended from the union;

(iv) the applicant alleges that his subsequent trial by the union was delayed for various reasons and eventually the suspension was rescinded without a trial;

(v) the applicant alleges that his treatment in subparagraphs (i) to (iv) was because he was a black male.

5The respondents have denied the allegations.

Request for dismissal for failure to comply with s. 53(5)

6The respondents assert that the applicant failed to comply with the requirements for filing a s. 53(5) application because the original complaint that was filed with the Ontario Human Rights Commission (the “Commission”) has never been attached to either the s.53(3) application (which was not accepted because it was filed after December 31, 2008) or the s.53(5) application. The respondents’ position is that the applicant, instead of attaching the original complaint, attempted to attach an amended complaint which was almost two thirds different than the original. The respondents argue that since the original complaint has not been attached to either the s. 53(3) or s. 53(5) applications, the Tribunal does not have jurisdiction to deal with this Application.

7The respondents do not dispute that the amended complaint that was attached contained within it the allegations that were part of the original complaint filed with the Commission. In other words, the one third of the amended complaint that was not new formed the basis of the original complaint. The Tribunal’s earlier Interim Decision clarified that the Application only involved those allegations that formed part of the original complaint to the Commission.

8To support their argument the respondents rely upon Rules 6.2 and 12.2 of the Rules of Procedure for Transitional Applications (Rules). Both Rules state that transitional applications must include “the complaint or amended complaint filed at the Commission”. The respondents argue that since the Application as filed did not contain the actual document that was the complaint or amended complaint that was filed with the Commission, the Application is not properly filed and the Tribunal does not have jurisdiction to deal with it.

9I do not accept the respondents’ position.

10Pursuant to Rule 1.1 of the Rules, the Tribunal rules shall be liberally construed in order to facilitate fair, just and expeditious resolution of the merits of matters before the Tribunal. The words “complaint or amended complaint” in Rules 6.2 and 12.2 should be interpreted such that the subject matter of the complaint or amended complaint is the same as the subject matter of the complaint or amended complaint that was filed with the Commission. The respondents’ position that the reference to complaint or amended complaint must mean the exact document that was filed with the Commission is overly technical and not consistent with a liberal interpretation of the rules.

11Even if I am incorrect in this interpretation, I would exercise my jurisdiction pursuant to Rule 3.6 to relieve against a failure to comply with the Rules. The current scope of the Application is based on the same subject matter as the compliant filed with the Commission. The respondents have not provided any evidence of substantial prejudice nor have they taken the position that there would be any undue delay.

12Accordingly, the respondents’ objection to the Tribunal’s jurisdiction to hear this matter as a result of the applicant’s failure to properly file a s.53(5) application is dismissed.

Request for dismissal based on the Ontario Labour Relations Board proceedings

13The respondents request that this Application be dismissed pursuant to s.45.1 of the Code as the Ontario Labour Relations Board (the “OLRB”) has appropriately dealt with the substance of the Application. In addition, the respondents argue that the Application should be dismissed as allowing relitigation of the substance of the Application would be an abuse of process.

Section 45.1

14Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

15In Campbell v. Toronto District School Board, 2008 HRTO 62, this Tribunal held that the test to dismiss an application pursuant to s.45.1 is two fold: (1) was there another proceeding and (2) if so, whether it appropriately dealt with the substance of the application.

16I find, as this Tribunal has on previous occasions, a proceeding before the OLRB is a proceeding within the meaning of s.45.1 of the Code.

17For the reasons that follow, I find that the proceedings before the OLRB did appropriately deal with the substance of the Application.

18Prior to filing the original complaint with the Commission, the applicant had filed two applications under the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, as amended (LRA), alleging breaches of s.74 and s.75. Copies of the s.74 and 75 applications were submitted to the Tribunal. The facts relied upon by the applicant in the OLRB applications are virtually identical to the facts relied upon in this Application.

19The OLRB dismissed both the s.74 and 75 applications in two different decisions. In the s.74 decision the OLRB determined that the facts as plead could not amount to a breach of s.74 of the LRA. However, the OLRB found that the identical facts relied upon for a breach of s.75 could amount to a breach of the LRA and therefore the s.75 application was referred to a hearing.

20A consultation hearing was held by the OLRB on the s.75 application. In its decision, Wright v. International Alliance of Theatrical Stage Employees, Local 873, 2008 CanLII 46626 (ON L.R.B.), the OLRB refers to the same allegations described in paragraph 4 above.

21Section 75 of the LRA reads as follows:

Where, pursuant to a collective agreement, a trade union is engaged in the selection, referral, assignment, designation or scheduling of persons to employment, it shall not act in a manner that is arbitrary, discriminatory or in bad faith.

22In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, this Tribunal found that the requirement of a union not to act in a discriminatory manner under s.74 of the LRA includes and is broader than discrimination on the grounds set out in the Code. The same principle applies with respect to the requirement of a union not to act in a discriminatory manner pursuant to s.75 of the LRA.

23In its decision under s.75 of the LRA, the OLRB dealt with the substance of the allegations now before this Tribunal and determined that there was no breach of the LRA. That finding included a determination that the respondents did not appear to have acted in a discriminatory manner. See Wright, supra at para 18.

24Accordingly, for all of the above reasons, I find that the proceedings before the OLRB were proceedings within the meaning of s.45.1 of the Code and that the proceedings appropriately dealt with the substance of the Application before this Tribunal.

Abuse of Process

25The discretion provided to the Tribunal in s.45.1 of the Code is at least as broad as the doctrine of abuse of process. The test for an abuse of process is set out in the Tribunal’s decision in Campbell v. Toronto District School Board, supra. Based on the allegations contained in the proceedings before the OLRB and in this Application and based on the final decisions of the OLRB, I would also find that allowing this Application to proceed would be an abuse of process. It would not be fair to allow the applicant to re-litigate issues that have already been determined by the OLRB.

26Accordingly, this Application is dismissed.