Alan Boswell v. NCR Canada and Nick Hames, 2012 HRTO 1563

Human Rights Tribunal of Ontario

B E T W E E N:

Alan Boswell Applicant

-and-

NCR Canada and Nick Hames Respondents

DECISION

Adjudicator: Ken Bhattacharjee Date: August 13, 2012 Citation: 2012 HRTO 1563 Indexed as: Boswell v. NCR Canada

appearances

Alan Boswell, Applicant ) Self-represented NCR Canada and Nick Hames, Respondents ) David I. Wakely, Counsel

INTRODUCTION

1The purpose of this Decision is to determine whether the Application should be dismissed in whole or in part pursuant to s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), because another proceeding has in whole or in part appropriately dealt with the substance of the Application, and/or because it is an abuse of the Tribunal’s process. These issues were addressed at a preliminary hearing where the parties were afforded the opportunity to make oral submissions.

BACKGROUND

2On May 31, 2011, the applicant filed an Application under s. 34 of the Code, which alleged that the respondents discriminated against him with respect to employment because of place of origin, sexual orientation, family status and marital status.

3On January 25, 2012, the parties attended a summary hearing by teleconference. On January 30, 2012, the Tribunal issued a Decision, 2012 HRTO 219, which dismissed the Application on a preliminary basis because it was untimely. On February 14, 2012, the Tribunal issued a Reconsideration Decision, 2012 HRTO 317, which upheld its original Decision.

4On April 4, 2012, the applicant filed a further Application under s. 34 of the Code, which alleged that the respondents discriminated against him with respect to employment because of marital status. In section 15 of the Application, the applicant admitted that the facts of the Application are the same as in his May 31, 2011 Application, which was dismissed, but that the respondents lied at the summary hearing and the Tribunal did not hear from any witnesses.

5On May 15, 2012, the Tribunal issued a Case Assessment Direction, which directed that a hearing be held by teleconference to decide whether the Application should be dismissed in whole or in part pursuant to s. 45.1 of the Code because another proceeding has in whole or in part appropriately dealt with the substance of the Application, and/or because it is an abuse of the Tribunal’s process.

6On August 3, 2012, the hearing took place. Both parties provided written submissions in advance of the hearing. At the hearing, I heard oral submissions from the applicant, and dismissed the Application with written reasons to follow. The following are my written reasons:

ANALYSIS

7Section 45.1 of the Code and Rule 22 of the Tribunal’s Rules of Procedure provide that the Tribunal may dismiss an Application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application. This Tribunal has found that the Supreme Court’s reasoning in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 ("Figliola"), applies to the interpretation of s. 45.1 of the Code. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297.

8Section 45.1 of the Code is the statutory reflection of the collective principles underlying the common law doctrines of issue estoppel, collateral attack, and abuse of process, which are used as vehicles to transport and deliver to the litigation process principles of finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice, all in the name of fairness. See Figliola, supra, at paras. 24-25.

9The principles underlying s. 45.1 of the Code can be summarized as follows:

• It is in the interests of the public and the parties that the finality of a decision can be relied on.
• Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice. On the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings.
• The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature.
• Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision.
• Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources.

See Figliola, supra, at paras. 34-35.

10In his oral and written submissions, which were largely unintelligible and off topic, the applicant did not dispute that the facts in his two Applications are essentially the same, that the process before the Tribunal which dealt with his first Application was a "proceeding" within the meaning of s. 45.1 of the Code, and that the previous proceeding dealt with the substance of the legal issue (timeliness) before the Tribunal. Rather, he submitted that he should have an opportunity to present his case at a merits hearing where he can provide evidence and call witnesses.

11I find that the substance of the Application has been appropriately dealt with by another proceeding. If the applicant wants to challenge the Tribunal’s Decision with respect to his first Application, he is obliged to follow the vertical line of judicial review to the Divisional Court. Filing essentially same Application with this Tribunal is an attempt to relitigate the first Application, and is an abuse of process.

ORDER

12The Application is dismissed.