Barron v. York Region District School Board, 2012 HRTO 2027

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rusty Barron

Applicant

-and-

York Region District School Board

Respondent

-and-

Canadian Union of Public Employees and its Local 1734

Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend

Date: October 24, 2012

Citation: 2012 HRTO 2027

Indexed as: Barron v. York Region District School Board

APPEARANCES

Rusty Barron, Applicant

Arthur Zeilikman, Counsel

York Region District School Board, Respondent

Patricia G. Murray, Counsel

CUPE Local 1734, Intervenor

Ryan Goldvine, Counsel

1A preliminary hearing was scheduled for October 19, 2012, to address the respondent’s request that this Application be dismissed on the basis of s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) and/or the doctrine of abuse of process.

2Two days in advance of this preliminary hearing, the applicant’s counsel, who had recently been retained, filed written submissions and an affidavit from the applicant. It was apparent from this written material that the applicant was relying on events that post-dated his Application to explain why he did not believe the grievance proceeding had appropriately dealt with the subject-matter of his Application.

3This was addressed at the outset of the preliminary hearing. After conferring with his client, counsel for the applicant indicated that the applicant had attempted to amend his Application to include what he believed to be ongoing acts of discrimination on three separate occasions, but had been advised to pursue this at a later date. The respondent was unaware of these attempts until it was raised at the preliminary hearing.

4This Interim Decision addresses the manner in which the parties should address the applicant’s stated intention to amend his Application. It also records an order I made at the preliminary hearing dismissing the existing allegations in the Application.

DISMISSAL OF THE ALLEGATIONS IN THE APPLICATION

5Section 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.

6After the applicant filed his Application on April 26, 2009, his union filed several grievances on his behalf, some of which addressed the allegations in his Application. On February 14, 2011, I issued an Interim Decision, 2011 HRTO 311, deferring his Application to the grievance arbitration process. The arbitrator issued her Award on February 13, 2012. A labour arbitration is a “proceeding” within the meaning of s. 45.1, see for example, Paterno v. Salvation Army, 2011 HRTO 2298.

7The applicant acknowledged at the preliminary hearing that in her Award, the arbitrator, Paula Knopf, had appropriately dealt with the substance of the allegations set out in his Application. Accordingly, I dismissed the allegations in this Application by way of oral order at the preliminary hearing.

SUBMISSIONS ON THE AMENDMENT OF THE APPLICATION

8It is clear from the arbitrator’s Award that the applicant continued to have ongoing issues with the respondent in the months after the filing of his Application, leading ultimately to the termination of his employment on or about November 15, 2010. The respondent objected to the applicant relying on these post-Application events at the preliminary hearing on October 19, 2012.

9In response to this objection, the applicant advised at the preliminary hearing that he had attempted on three separate occasions to amend his Application with the Tribunal to reflect what he believed to be ongoing violations of the Code. He produced two emails from June and August 2009, which appeared to be addressed to the Registrar of the Tribunal. These were not copied to the respondent, and it would appear that no further action was taken on the requests contained in them.

10In addition, the applicant stated that he had a discussion with Tribunal staff about further events and was told to wait until the “hearing” to raise them since his union was addressing these issues. The respondent was unaware of any discussion between the applicant and Tribunal staff about possible amendments.

11The applicant made no further attempt to amend his Application, even after it was reactivated on May 11, 2012 (2012 HRTO 955). As noted above, the respondent was unaware that the applicant had any intention to amend until the hearing. It took the position that if the applicant had wished to include subsequent events, the applicant ought to have either filed a request(s) to amend his Application or filed a new Application in a timely manner.

12It was clear that both counsel were surprised by the emergence of this issue and could not fully address it at the preliminary hearing. I advised the parties that I would set out the manner in which I wished to have this addressed and the timetable for filing documents in a written decision.

13On or before November 5, 2012, the applicant must deliver and file a Request for an Order During Proceedings (Form 10), setting out the amendments he wishes to make to his Application. The respondent shall have 14 days from the date on which the Request to amend is delivered to it to deliver and file a Response to the Request for Order (Form 11).

14In the event the applicant fails to file a Request to amend by the specified date, his Application will be dismissed on the basis that there are no remaining allegations of discrimination set out in it, as the original allegations have been dismissed under s. 45.1 of the Code.

15This issue will be addressed in writing unless the Tribunal directs that a further oral hearing take place. In the event that the Tribunal allows some or all of the requested amendments, it may further direct that a hearing take place to address the outstanding abuse of process/s. 45.1 issues.

ORDER

16In sum, I have made the following order/directions:

a. The allegations in this Application are dismissed under s. 45.1 of the Code.

b. On or before November 5, 2012, the applicant must deliver and file a Request for an Order During Proceedings (Form 10), setting out the amendments he wishes to make to his Application, failing which his Application will be dismissed.

c. The respondent shall have 14 days from the date on which the Request to amend is delivered to it to deliver and file a Response to the Request for Order (Form 11).

d. The Tribunal will address any Request to amend in writing unless it issues further direction.