HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ronald Harpelle
Applicant
-and-
Lakehead University
Respondent
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Harpelle v. Lakehead University
WRITTEN SUBMISSIONS
Ronald Harpelle, Applicant
Self-represented
Lakehead University, Respondent
Barry Kuretzky, Counsel
Introduction
1This Interim Decision deals with a request by the respondent that the Application be dismissed as an abuse of process or in the alternative that the respondent be granted an extension of time to file its Response.
Background
2The present Application is related to two earlier Applications in Tribunal file numbers 2009-023830-I and 2009-02292-I. One of these was filed by the applicant in the instant Application. The other was filed by Jean-Yves Bernard. Those two Applications were consolidated by the Tribunal in Decision 2011 HRTO 1408.
3Jean-Yves Bernard and Ronald Harpelle are professors in Lakehead University’s Department of History. The Applications arise out of their respective employments with the University. They allege that they have been subject to reprisal in employment as a result of human rights issues that they raised.
4The earlier consolidated Applications have been the subject of a large number of Decisions and Case Assessment Directions. A hearing is scheduled for April 2013 in respect of the consolidated Applications.
5Among the issues have been requests by the applicants to amend the Application to add additional allegations of reprisal. These requests were considered by the Vice-chair in Decision 2012 HRTO 370 at paragraphs 15 – 20:
The essence of the applicants’ Requests to amend the Applications concerns what they say are ongoing reprisals or threats of reprisal. It is clear that the ongoing employment relationship between the parties has been difficult. The applicants characterize a significant number of their interactions with the University administration as a reprisal or threat of reprisal. I expect that, until the Tribunal has finally determined these Applications, the applicants will continue to identify additional interactions between them and the University that they believe constitute reprisal.
On the one hand, the applicants have indicated that they want the Tribunal to determine the Applications and their rights under the Code without unnecessary further delay. On the other hand, however, the applicants have filed a number of Requests in which they seek to significantly broaden the scope of the Applications.
While the applicants’ position may be understandable, it creates some difficulty for the hearing process. Until the parameters of the allegations in the Applications have been established, the matter cannot go forward. New and significant amendments mean delays, they also mean that any hearing of the matters will be considerably longer. At some point, in order for these Applications to advance through the Tribunal’s hearing process, their scope must be defined.
The applicants have each filed extensive materials detailing what they say are further reprisal measures or threats of reprisal. I accept that the proposed amendments concerning the 2008 investigation are closely connected (in time and on the facts) to the allegations contained in the Application. In my view, adding these allegations, even at this late stage, will not prejudice the respondents, significantly delay or increase the complexity of the proceedings.
I accept also that, to the extent that they relate to the allegations contained in the Applications or the amendments concerning the 2008 investigation report, the proposed amendments concerning the remedies sought by the applicants should be allowed. I make no finding as to the whether these remedies will or could ultimately be imposed. However, applying the legal principles set out above, I see no reason to deny the request to amend the Applications to amend the remedies sought.
The other proposed amendments are very broad in nature and they would significantly increase the complexity of the proceeding and the scope of the evidence that could be necessary. The amendments concern much of the employment relationship between the parties for the past approximately two years. These allegations are less closely connected to the Application: they principally relate to interactions that occurred in 2010 and 2011, some time after the Applications were filed. Given this late stage of the proceeding, the fact that detailed pleadings have been filed by all of the parties, and the less direct connection between these allegations and the alleged acts of discrimination contained in the Applications, I find that it would not be appropriate to allow the applicants to make such amendments to their Applications.
6The Vice-chair thus granted the request to add allegations concerning events that occurred before the Applications were filed but denied the request to add allegations concerning events that occurred after the Applications were filed.
7The instant Application has been filed by one of the applicants, Ronald Harpelle. In effect, it is an Application alleging continuing reprisal in the period since the original Applications were filed. It is essentially a new Application with respect to the allegations that the Vice-chair did not allow to be added to the earlier Applications.
8The instant Application was delivered to the respondent on November 22, 2012. On December 4, 2012, the respondent filed a Request for Order During Proceedings. It asked the Tribunal to dismiss the Application because it is an abuse of process. In the alternative, the respondents request an extension of time to file a Response.
Abuse of process
9The respondent submits that the instant Application is an abuse of process because it seeks to add allegations about events subsequent to 2009 when the earlier Applications were filed. The respondent notes that the Vice-chair in Decision 2012 HRTO 370 refused to allow the earlier Applications to be amended to include those same allegations. The respondent suggests that the new Application is an attempt by the applicant to subvert the Tribunal’s Decision and that this is an abuse of process.
10In my view it is clear that the present Application is not an abuse of the Tribunal’s process. In Decision 2012 HRTO 370, the Vice-chair was quite clear that the reason she was not permitting the applicants to add allegations about events subsequent to 2009 was because doing so would result in significant prolongation and complication of a case that is already prolonged and complicated. The Decision certainly does not preclude the applicant from making allegations about continuing alleged reprisal since 2009. It only restricted the allegations to the events prior to 2009 so that the hearing could proceed without further undue delay and complication.
11For these reasons, the present Application is not dismissed as an abuse of process.
Time lines
12When the present Application was served on the respondent, the Tribunal directed the respondent to file a Response by January 10, 2013. The Application was also sent to the Lakehead University Faculty Association. The Association was directed to file a Request to Intervene by January 13, 2013.
13The respondent asks that an extension of time be granted to file a Response. That request is granted. The respondent shall file its Response to the Application by January 25, 2013.
14The Lakehead University Faculty Association may file a Request to Intervene by February 8, 2013.
15Since the allegations in the present Application are related to the allegations in the earlier Applications, and since those Applications have been consolidated, the Tribunal will deliver a copy of the Application to Jean-Yves Bernard.
Dated at Toronto, this 27th day of December, 2012.
”signed by”
Brian Cook
Vice-chair