HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ezra Taylor
Applicant
-and-
Humber River Regional Hospital, Frances Reinholdt, Kelley Kimens, Evangaline Andaya and Catherine Green
Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Taylor v. Humber River Regional Hospital
WRITTEN SUBMISSIONS
Ezra Taylor, Applicant
Self-represented
Humber River Regional Hospital, Frances Reinholdt, Kelley Kimens, Evangaline Andaya and Catherine Green, Respondents
Mark Mason, Counsel
Ontario Nurses Association, Proposed Respondent
Colin Johnston, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). An Interim Decision was issued on October 7, 2010, 2010 HRTO 2052 deferring the Application pending the conclusion of the grievance process.
2On June 30, 2012, Arbitrator John Stout issued a decision (the “Arbitration Decision”) with respect to a number of grievances that had been filed by the Ontario Nurses Association (“ONA”) the applicant’s bargaining agent, on behalf of the applicant.
3On July 12, 2012, the applicant filed a Request for an Order During Proceedings (the “Request”) seeking to:
a. Proceed with the deferred Application;
b. Add two additional individual respondents;
c. Add the Ontario Nurses Association (“ONA”) as a respondent; and
d. Have the Tribunal order the production of the grievance hearing file from ONA.
4On July 27, 2012 the respondents filed a Response opposing the applicant’s Request on the basis that the Application should be dismissed pursuant to section 45.1 of the Code because another proceeding had appropriately dealt with the substance of the Application.
5On August 10, 2012, ONA filed a Response opposing the Request to add it as a respondent because the applicant had not alleged any facts that could support a finding that it had breached the Code. ONA also supports that the Application should be dismissed because the substance of the Application has been appropriately dealt with by another proceeding. ONA opposed the applicant’s Request for production on the basis that it should only be dealt with until after the issue of its status as a respondent is determined by the Tribunal.
6No submissions have been received from the two other proposed individual respondents. However, the applicant has not filed a Form 23 confirming that he has delivered the Request to add them as respondents.
Proceeding with the Application
7The Tribunal has reviewed the materials filed by parties and there is no dispute that the grievance process is concluded and that the Arbitration Decision has been rendered. Therefore, I find that it is appropriate for the Tribunal to proceed with the Application.
8However, the Tribunal will convene a half-day telephone conference hearing to address the respondent’s Request to dismiss on the basis that the substance of the Application may have been appropriately dealt with, in whole or in part, by Arbitrator Stout in the Arbitration Decision. Section 45.1 of the Code states: “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”. The applicant may wish to refer to the Supreme Court of Canada’s decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, and the Tribunal’s decision in Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297.
Request to Add Parties
9The applicant’s Request to add the two additional individual respondents is denied on the basis that it has not been properly delivered and as such there is no evidence that these two additional respondents have notice of the Request to add them as respondents to the Application.
10With respect to the applicant’s Request to add ONA as a respondent, it is appropriate for the Tribunal to convene a telephone conference hearing to determine this issue including whether there are any allegations which could support a finding that ONA has breached the Code. The applicant may wish to refer to the Tribunal’s decision in Smyth v. Toronto Police Services Board, 2009 HRTO 1513.
Request for Production
11Rule 16 of the Tribunal’s Rules provide for the disclosure of arguably relevant documents, which are required within 21 days of the issuance of a Notice of Hearing. The Tribunal will only require parties to engage in early production of documents in exceptional circumstances. I note that ONA is not a party to the Application. There is nothing exceptional in these circumstances which justify early production of documents by a non-party. The Request for production is denied as premature.
Order
12The Tribunal Orders as follows:
a. The applicant’s Request to Proceed with the Application is granted;
b. The applicant’s Request to add two additional individual respondents is denied;
c. The applicant’s Request for production of ONA’s hearing file is denied;
d. The Tribunal’s Registrar will schedule a half-day hearing by teleconference. The applicant will proceed first. The parties and ONA shall make argument about whether the Application should be dismissed, in whole or in part, pursuant to s. 45.1 of the Code and whether ONA should be added as a respondent; and
e. A Notice of Hearing will follow from the Registrar’s Office. The parties and ONA shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 21 days prior to the teleconference.
13I am not seized of this matter.
Dated at Toronto, this 13th day of August, 2012.
“Signed by”
Geneviève Debané
Vice-chair