HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Brad Wilson Applicant
-and-
City of Mississauga, the International Association of Machinists and Aerospace Workers and Rod Perkins Respondents
INTERIM DECISION
Adjudicator: Eric Whist Date: November 22, 2012 Citation: 2012 HRTO 2179 Indexed As: Wilson v. City of Mississauga
WRITTEN SUBMISSIONS
Brad Wilson, Applicant Self-represented
Corporation of the City of Mississauga and Robert Perkins, Respondents Erin Kuzz, Counsel
International Association Of Machinists and Aerospace Workers District Lodge 78, Respondent Christine Davies, Counsel
BACKGROUND
1The applicant has filed seven related Applications, three of which have been dismissed; T-0092-08, 2008-003389-I and 2008-00391-I. The remaining four applications, although somewhat difficult to understand in terms of what the applicant alleges are violations of his rights under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and when these alleged violations may have taken place, contain related and overlapping allegations.
2The applicant filed Application 2010-07430-I on November 9, 2010-I and Application 2010-07588-I on December 6, 2010. The Tribunal considered these Applications at a summary hearing on June 21, 2011. On July 19, 2011 the Tribunal issued Interim Decision, 2011 HRTO 1349 in which it determined that the applicant had made sufficiently clear allegations that his supervisor, Richard Cabrera, had made discriminatory and harassing comments in the period June to December 2010 related to the applicant’s disability and that these alleged comments could potentially be determined to be in reprisal for the applicant’s earlier Applications. The Tribunal determined that these two Applications would proceed before the Tribunal.
3The applicant filed Application 2012-10725-I on December 23, 2011 naming the applicant’s bargaining agent, the International Association of Machinists and Aerospace Workers District Lodge 78 (the “Union”) and Rob Perkins as respondents. The Application alleges discrimination on the basis of disability and reprisal. Rob Perkins is an employee of the respondent’s but is not a member of the Union.
4Application 2012-10725-I alleges that the Union failed to represent the applicant in his previous Applications with the Tribunal. The Application alleges Rob Perkins, the named personal respondent and the applicant’s supervisor, unduly questioned the applicant about cleaning a women’s washroom in December 2011 and called the applicant a pervert. The Application also alleges that Paul DeFrias, the union’s chief steward, threatened to put the applicant in hospital and made fun of the way the applicant walks. It appears that the Application alleges that these comments were made on February 16, 2011.
5The Applicant filed Application 2012-10910-S on January 17, 2012, alleging that the respondent had breached the terms of the settlement signed between the respondent and the applicant on November 26, 2008. The Application alleges that the respondent breached the settlement provision that it continue to abide by the Code and to follow all policies, practices and procedures currently in place to provide a respectful work environment. The Application alleges that the respondent’s breached the settlement in December 2012 when Mr. Perkins was questioning the applicant about cleaning a women’s washroom and allegedly called the applicant a pervert. The Application also alleges that the respondent breached the settlement in 2008 and 2010. The Application further alleges that the union breached the November 26, 2008 settlement when it failed to represent the applicant in his human rights disputes with the respondent and when Paul DeFrias said that he would put the applicant in hospital and made fun of the applicant’s disability.
6The Tribunal issued CADs on May 10, 2012 and June 8, 2012 asking the parties to provide submissions on 1) whether Applications 2010-7430-I, 2010-07588-I, 2012-10725-I, and 2012-10910-S should be considered together; 2) whether the Tribunal lacked jurisdiction over Application 2012-10910-S because the Application was filed beyond the six month limit from the alleged contravention of the settlement as required by section 45.9 of the Code and 3) whether the Tribunal should declare the applicant to be a vexatious litigant and prohibit him from filing future applications against the respondent without leave of the Tribunal.
7The respondent submits that the four current Applications are linked because they either repeat the same allegations or raise allegations that are intrinsically linked. The respondent submits that the Tribunal should allow the Applications to proceed together. The union submits that the Application naming the union as respondent, 2012-10725-I should be consolidated with the applicant’s earlier Applications 2010-07430-I and 2010-07588-I. The applicant does not take a position on this issue.
8It is further noted that the respondent filed a Request to Intervene in 2012-10725-I on the basis that it names Rob Perkins, a manager for the respondent, as a respondent (and because of the overlap with Application 2012-10910-S). The union consents to this request to intervene.
9The respondent submits that at least some of the allegations in Application 2012-10910-S are out of time in that they occurred more than six months prior to the alleged breach of the settlement. The applicant appears to submit, in part, that the ongoing nature of the breaches renders them all timely. He also requests that all his Applications be “re-opened”.
10The respondent further submits that the Tribunal should declare the applicant to be a vexatious litigant given the applicant continues to file Applications that contain repetitive and overlapping allegations with no signs that the applicant will stop at any time in the future. The respondent expresses concerns about the considerable amounts of time and resources it has taken to respond to the applicant’s confusing and repetitive allegations. The respondent expresses further concerns about the applicant’s practice of filing voluminous additional documentation in support of his Applications, documentation the respondent submits is both repetitive and often irrelevant.
ORDER
11The Tribunal will proceed to consider 2010-07430-I, 2010-07588-I, 2012-10725-I, and 2012-10910-S together. I am satisfied that this would be the most expeditious and fair way to address the overlapping and related allegations of discrimination raised in these applications. I note that the respondent and the union essentially support this plan and the applicant has not objected.
NEXT STEPS
12I note that in two of these four applications the respondent and applicant agreed to participate in mediation. However, in light of my conclusion that these four matters should proceed together, and having regard to the issues raised and the material filed to date, I direct that these matters proceed to hearing together. Accordingly, the Tribunal will schedule a one day hearing to consider the allegations of discrimination on the basis of disability or reprisal raised by these four Applications.
13The parties should be prepared to address the following issues at the hearing:
Was the applicant subject to treatment by the respondent that violated his rights under the Code in the period June to December 2010. In particular, was the applicant subject to discriminatory treatment including harassing comments by his supervisor, Richard Cabrera, as identified by the Tribunal in its July 19, 2011 Interim Decision, 2011 HRTO 1349. (see para 35-37).
Was the applicant subject to treatment by the respondent that violated his rights under the Code in the period February 2011 to December 2011? In particular, was the applicant subject to discriminatory treatment including harassing comments by his supervisor, Rob Perkins, the basis of his disability or reprisal for the applicant pursuing his rights under the Code.
Was the applicant subject to harassing comments by Paul DeFrias on February 16, 2011 that violated his rights under the Code?
Was the union’s decision not to act on the applicant’s behalf in his pursuit of his Applications a violation of the applicant’s rights under the Code?
Should some (or all) of the allegations in 2012-10910-S be dismissed for delay?
Should the Tribunal find the applicant to be a vexatious litigant and prohibit him from filing future applications against the respondent without leave of the Tribunal. The parties’ may wish to refer to Tribunal’s decisions in Drenic v. Salvation Army, 2010 HRTO 1667 and Abdul v. University of Toronto, 2011 HRTO 2299
14In order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may exercise any of the powers set out under the Code or under Rule 1.7 of its Rules of Procedure. While I will provide an opportunity for the parties to make submissions at the outset of the proceeding on the six proposed issues to be addressed and any additional issues they feel are necessary to the determination of this matter, I note that the Tribunal’s rules include the powers to: determine and direct the order in which issues in a proceeding, including issues consider by a party or the parties to be preliminary, will be considered and determined (Rule 1.7(g)); define and narrow the issues in order to decide an Application (Rule 1.7(h)); and limit the evidence or submissions on any issue (Rule 1.7(n)).
15The parties will receive a Notice of Confirmation of Hearing that will indicate the scheduled hearing date. This Notice also provides, pursuant to the Tribunal’s Rules of Procedure, directions about when and how parties are to exchange and file documents they wish to rely on at the hearing as well as the information they need to provide about witnesses. I would draw the applicant’s attention to the importance of these requirements and the Tribunal’s further Rules about how to make any request for an order from the Tribunal. The applicant should note that the Tribunal cannot accept for filing documents that are not disclosed or delivered to the other parties, pursuant to the Tribunal’s Rules.
16The applicant’s attention is drawn to the Guide to Preparing for a Hearing before the HRTO to further assist him in preparing for the hearing.
Summary
17The Tribunal orders as follows:
Applications 2010-7430-I, 2010-07588-I, 2012-10725-I, and 2012-10910-S are consolidated and will proceed together;
The Tribunal will provide the parties with copies of the applications and responses in each of the related matters if they have not already received these documents and
The Tribunal will schedule a one-day hearing to determine the above four applications.
Dated at Toronto, this 22nd day of November, 2012.
”signed by”
Eric Whist Vice-chair