Lee v. Kawartha Pine Ridge District School Board, 2012 HRTO 1792

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Lee

Applicant

-and-

Kawartha Pine Ridge District School Board

Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: September 20, 2012 Citation: 2012 HRTO 1792 Indexed as: Lee v. Kawartha Pine Ridge District School Board

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”), alleging discrimination with respect to employment because of disability, family status and marital status and reprisal or threat of reprisal.

2The purpose of this Interim Decision is to address two matters: (1) the respondent’s request for dismissal of part of the allegations raised in the Application as barred by s. 53(8) of the Code; and (2) the applicant’s request for production of certain documents.

REQUEST FOR DISMISSAL UNDER S. 53(8) OF THE CODE

3The applicant originally filed a lengthy Application dated February 13, 2010. This Application was reviewed by the Tribunal and determined to be incomplete. The applicant submitted the information required to complete his Application, and the completed Application was served on the respondent on December 16, 2010.

4On January 10, 2011, the respondent filed a Request for Order seeking a variety of relief. By this time, the applicant had retained legal counsel, who responded to the Request by indicating his intention within 60 days to file a re-drafted Application in order to provide a clear statement of the issues the applicant is raising. By Case Assessment Direction dated May 6, 2011, the Tribunal allowed applicant’s counsel to file a re-drafted Application and directed the respondent to advise following receipt of the Application whether it wished to renew the requests made in its Request for Order.

5Due to health issues affecting applicant’s then counsel, the re-drafted Application was not filed with the Tribunal until December 5, 2011. Thereafter, on January 12, 2012, the respondent wrote to the Tribunal to indicate that several of the matters raised in its original Request for Order had been resolved as a result of the re-drafted Application, but there was still one outstanding issue related to the reference in the Application to allegations raised by the applicant in prior complaints filed with the Ontario Human Rights Commission (the “Commission”).

6On December 29, 2004, the applicant had filed a complaint with the Commission alleging discrimination in employment because of disability and family status. This complaint related to events from 1998 to August 2004, and was settled by Minutes of Settlement dated May 27, 2005.

7Thereafter, the applicant filed a second complaint with the Commission dated August 23, 2006 alleging discrimination in employment because of disability, marital status and family status and reprisal. This complaint raises allegation about the denial of shift trades as of June 2006, which the applicant alleges he required as an accommodation due to his disabled spouse and his young daughter. The applicant also alleges in this complaint that he was subjected to a “verbal assault” on June 22, 2006 in retaliation for having filed his prior human rights complaint. This complaint was closed as withdrawn by the Commission on August 22, 2008, which is stated to have been in accordance with the applicant’s verbal request.

8Section 53(8) of the Code provides as follows:

No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

9The human rights system in Ontario was changed effective June 30, 2008 from the former system in which individuals filed complaints with the Commission to the current system in which individuals file applications directly with the Tribunal. If an individual had an active complaint with the Commission as of June 30, 2008, they essentially had two options: (1) they could abandon that complaint and file what was known as a transitional application with the Tribunal pursuant to s. 53(3) of the Code; or (2) they could leave their complaint with the Commission to deal with at least until December 31, 2008. If the Commission had not dealt with a complaint by December 31, 2008, the individual had a further six month period, until June 30, 2009, to file a transitional application with the Tribunal pursuant to s. 53(5) of the Code.

10In the instant case, the applicant could have transitioned his August 23, 2006 complaint to the Tribunal under the new system by filing a transitional application under s. 53(3), but he did not do so. Instead, as recorded by the Commission, he decided to withdraw this complaint as of August 22, 2008. Because the withdrawal meant that there was no active complaint at the Commission as of December 21, 2008, the applicant was not entitled to file a transitional application under s. 53(5), and in any event did not attempt to do so.

11The effect of s. 53(8) of the Code is to say that, if an individual previously had filed a complaint with the Commission under the former system, the only way to address the issues raised in that complaint before this Tribunal is by filing a transitional application. If an individual did not file a transitional application, then issues raised in a previous complaint filed with the Commission were barred and could not be raised in a new application filed under the current system.

12The issue in the instant case is whether the applicant in fact is raising any allegations that formed the subject-matter of his prior complaints to the Commission. The allegations raised in the re-drafted Application are comprised of two parts: a summary of the allegations prepared by legal counsel; and a chronology of events appended to the claim prepared by the applicant himself. No reference is made either in the summary of allegations or the appended chronology to any events which formed the basis of the applicant’s first complaint to the Commission. With regard to the applicant’s second complaint, no issue is raised regarding the alleged directive in June 2006 that he was not to trade shifts. And while the June 22, 2006 meeting is briefly referenced, I regard this as more of a background statement to describe the alleged basis for the applicant’s depression and anxiety attacks, rather than an allegation of a violation of the Code arising out of any alleged conduct at this meeting.

13I appreciate that the applicant has appended his two human rights complaints to his re-drafted Application, but that does not make the issues raised in those complaints part of the subject-matter of the instant Application. If there was any intention on the applicant’s part to re-raise the issues addressed in his prior human rights complaints by appending them to his current Application, then the re-raising of such issues would be clearly barred by s. 53(8). But there is nothing in either the summary of allegations or in the appended chronology to indicate that the applicant is attempting to re-raise these previous allegations.

14Accordingly, on a fair reading of the re-drafted Application, I find that the applicant is not attempting to re-raise allegations set out in his prior human rights complaints, and so I find that there is no basis to apply s. 53(8) of the Code in these circumstances.

15I appreciate that at any hearing of this matter, evidence may be tendered regarding the June 22, 2006 meeting and what occurred at that meeting. I make no ruling as to the relevance or admissibility of any such evidence at this time. I note merely that such evidence in my view would not be barred by s. 53(8) of the Code so long as such evidence is presented as going to the basis or otherwise for the applicant’s disability and required accommodations as these pertain to subsequent events raised in the re-drafted Application, and not for the purpose of alleging that anyone’s conduct at the June 22, 2006 meeting in and of itself constitutes a violation of the Code.

16I appreciate that the applicant filed a Request for Order dated March 30, 2012 seeking dismissal of the respondent’s request to dismiss part of his Application. This request was unnecessary and duplicative in light of the fact that the applicant already had filed a Response to the respondent’s Request for Order seeking the same thing. In any event, in light of my ruling, the applicant’s Request in this regard is now moot.

APPLICANT’S REQUEST FOR PRODUCTION

17The applicant filed a Request for Order dated March 19, 2012 seeking production from the respondent of certain documents relating to information provided to the respondent by the applicant’s uncle.

18This request is premature. Once a Notice of Hearing is issued, the parties are under an obligation to disclose to each other within 21 days all documents which are arguably relevant to the issues raised in the proceeding. If after receipt of such disclosure from the opposing party, a party believes that the disclosure is incomplete, then the first step is to raise the issue with the opposing party, set out specifically what additional documents the party believes should be disclosed and why the party believes they are arguably relevant to an issue in the proceeding, and afford the opposing party a reasonable period of time to respond. If after that there is a dispute between the parties as to what documents should be disclosed, then the party seeking disclosure should at that time file a Request for Order attaching any relevant correspondence exchanged between the parties and specifying the documents that the party seeks to have disclosed and why they are arguably relevant.

19No Notice of Hearing has yet been issued in this proceeding, and so the parties’ disclosure obligations have not yet crystallized. Accordingly, the applicant’s request for production is denied at this time. If after receiving disclosure from the respondent and raising any deficiencies with respondent counsel, the applicant continues to believe that full disclosure has not been made, he may then file a new Request for Order seeking additional production from the respondent.

20Finally, the applicant is reminded that pursuant to Rule 3.3 of the Tribunal’s Rules of Procedure, he may not use documents obtained from the respondent pursuant to its disclosure obligations under these Rules for any purpose other than in the proceeding before the Tribunal. As a result, once the respondent has made disclosure to the applicant, he cannot use any of the documents disclosed to pursue any issues he may have regarding his uncle.

NEXT STEPS

21This matter shall continue in the Tribunal’s process. In this regard, I note that the re-drafted Application indicates that the applicant is interested in mediation, but the respondent has not indicated such an interest. If the respondent is prepared to pursue mediation, then it shall advise the Tribunal within the next 7 calendar days from the date of this Decision and an appropriate date for mediation will be scheduled. If the respondent is not interested in pursuing mediation or does not respond within 7 calendar days, this matter will be scheduled for a hearing in the normal course.