HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Edmund Rock
Applicant
-and-
Toronto Community Housing Corporation
Respondent
INTERIM DECISION
Adjudicator: Alan G. Smith
Indexed as: Rock v. Toronto Community Housing
WRITTEN SUBMISSIONS
Edmund Rock, Applicant
Self-represented
Toronto Community Housing Corporation, Respondent
Christina Henderin, Counsel
BACkground
1This is an Application filed on August 25, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”).
2The applicant alleges discrimination in employment on the grounds of race and disability. His employment was terminated on December 21, 2009. The applicant is represented in his employment relations by the Ontario Public Service Employees’ Union, Local 529 which filed a grievance on his behalf challenging the termination. The grievance was not settled during the grievance process and was referred to arbitration.
3The respondent filed a Response in which it requests that the Tribunal defer the Application pending the completion of the arbitration process. By Interim Decision 2011 HRTO 284, dated February 10, 2011, the Tribunal deferred the Application pending the outcome of the arbitration process.
4The arbitration concluded in June 2012 and an arbitration award was issued on June 8, 2012.
5On July 20, 2012, the applicant filed a Request for Order During Proceedings (Tribunal Form 10) requesting that the Application be reactivated. I note that the applicant also delivered the Form 10 to the respondent as well as a number of individuals not named as respondents in the Application.
6On August 13, 2012, the respondent filed a Response to the applicant’s Request in which it argues that the Application should be dismissed pursuant to Code s. 45.1., because of the arbitration award issued on June 8, 2012.
7The respondent also objected to the seeming attempt by the applicant to add individual respondents to the Application by delivering the July 20, 2012, Form 10 to various persons not named as respondents.
ANALYSIS
Reactivation
8I find that the applicant’s request to reactive the Application complies with Tribunal Rule 14.4 as it was made within the 60 day time limit, and therefore the Application will be reactivated.
s. 45.1/Abuse of Process – Preliminary Hearing
9The respondent has raised the issue of whether the Application should be dismissed on the basis of section 45.1. S. 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”. See for example, Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297.
10I agree that this issue should be addressed prior to proceeding further with this Application and I order an oral hearing to be held to hear argument on it. Section 43(2)1. of the Code provides, “An application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules”.
11The Tribunal also has the jurisdiction to stay or dismiss an application if to proceed would amount to an abuse of process. This discretionary power is confirmed by section 23(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S. 22, which provides that “a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.”
12The parties should also, therefore, be prepared to make submissions at the hearing on the application of the doctrine of abuse of process in this case. In Snow v. Honda of Canada Manufacturing, 2007 HRTO 45, the Tribunal explained the doctrine of abuse of process as follows (at para. 55):
The Supreme Court of Canada has stated that the doctrine of abuse of process is appropriately used to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) have not been met, but where allowing the litigation to proceed would nonetheless violate principles such as judicial economy, consistency, finality, and the integrity of the administration of justice.
13As noted by the Tribunal in Campbell v. Toronto District School Board, 2008 HRTO 62 at para. 28, abuse of process is a legal doctrine “whose focus is the integrity and coherence of the adjudicative process” and a finding of abuse of process is not a conclusion that any party has acted with malice or in bad faith. The abuse of process inquiry focuses on whether it would be fair to proceed in the circumstances given the conclusions and findings made in the other proceeding. See, Banigan v. Sheridan College Insititue of Technology, 2010 HRTO 631 and N.P. v. Ottawa-Carleton District School Board, 2010 HRTO 2422 and 2010 HRTO 532.
14Therefore, a preliminary hearing by conference call will be scheduled to address whether the Application should be dismissed pursuant to s. 45.1 and/or as an abuse of process.
Adding Parties
15Tribunal Rule 1.7 (b) allows that the Tribunal may add or remove a party in order to provide for the fair, just and expeditious resolution of any matter before it. However, in order to request that individuals be added as respondents a Request for Order During Proceedings (Tribunal Form 10) must be prepared by the applicant and delivered to the current respondent and to all of the individuals that the applicant seeks to add as respondents. The Form 10 and a Statement of Delivery (Tribunal Form 23) must be filed with the Tribunal, and the contents of the Form 10 must comply with Tribunal Rule 19.4. In the present case, the applicant does not appear to have taken the above steps to add any respondent parties.
16Should the applicant seek to add respondent parties, the Tribunal’s Practice Direction on Naming Respondents (available on the Tribunal’s website) may be of assistance. It should be noted that the Tribunal’s Practice Direction indicates that, where there is an organizational respondent who may be held liable for the alleged infringement and is in a position to satisfy any remedies ordered, the naming of individual respondents is generally discouraged. Any request made by the applicant to add parties will be considered by the Tribunal after the hearing on s 45.1 and abuse of process.
ORDER
17The Application is reactivated.
18The Registrar will schedule a half-day hearing by conference call to hear submissions on the issue of whether the Tribunal should dismiss the Application pursuant to s. 45.1 and/or as an abuse of process. The following directions shall apply to the conference call:
(a) The respondent should be prepared to proceed first, by addressing the s. 45.1 and abuse of process issue. The applicant should then be prepared to respond to these issues;
(b) If either party wishes to rely on any further written materials (including written submissions, documents or case law) or facts not contained in the Application, Response, Form 10 or Form 11, they must deliver such additional material to the other party and file it with the Registrar no later than 14 days before the date of the conference call.
19I am not seized of this matter.
Dated at Toronto, this 28th day of August, 2012.
”signed by”
Alan G. Smith
Member