HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jean-Yves Bernard
Applicant
-and-
Lakehead University, Lakehead University Faculty Association, Gillian Siddall, Ray Raslack, Laurie Hayes, and Frederick Gilbert
Respondents
AND B E T W E E N:
Ronald Harpelle
Applicant
-and-
Lakehead University, Lakehead University Faculty Association, Gillian Siddall, Ray Raslack, Laurie Hayes, and Frederick Gilbert
Respondents
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: Bernard v. Lakehead University
1This Interim Decision addresses the applicants’ requests:
a. To amend their Applications; and
b. For interim remedy.
2For the reasons that follow, the requests to amend the Applications are granted in part. The requests for interim remedy are denied.
OVERVIEW
3The applicants in both these matters have filed Applications under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). Both allege reprisals or threat of reprisals in the context of their employment.
4The applicants are professors in Lakehead University’s Department of History (“Department”). They raised concerns with the University about the Department’s academic staffing process in 2008. Among other things, the applicants alleged that racist remarks were made during the staffing process and that race was a factor in the hiring decision. They state that the University reprised against them after they complained about the 2008 staffing process.
5These Applications were filed in 2009 and have been ongoing for some time. The parties have filed numerous Requests for Orders During Proceedings (“Requests) and, to date, the Applications have been the subject of at least four Case Assessment Directions (“CAD”), four Interim Decisions, and one Reconsideration Decision.
6The chronology of the proceedings can be summarized as follows:
a. In an Interim Decision, 2011 HRTO 977, the Tribunal removed counsel for the University Respondents.
b. In a CAD dated June 9, 2011, the Tribunal stated that, unless directed to do so by the Tribunal, parties need not respond to any Requests filed after May 20, 2011.
c. Since May 20, 2011, the applicant Bernard has filed three Requests. He seeks to, among other things, amend the Application to include an allegation that a 2008 report constitutes a reprisal measure (Request filed June 3, 2011), amend the Application to vary the remedies sought in the Application (Request filed September 4, 2011) and to add allegations of reprisal (Request filed October 3, 2011). The applicant Harpelle has filed one Request since May 20, 2011 in which he seeks to amend the Application to add further allegations of reprisal (Request filed October 26, 2011).
d. In an Interim Decision, 2011 HRTO 1408, the Tribunal denied the University respondents’ request to dismiss the Applications.
e. In a CAD dated August 5, 2011, the Tribunal provided direction to the parties regarding the next steps in these proceedings. In the August 5, 2011 CAD, the Tribunal stated it would schedule a two-hour telephone conference call to address the applicants’ Requests to amend their Applications to add further allegations of reprisal and to allow the parties to make submissions regarding whether any other Requests should be determined in advance of a hearing on the merits.
f. On August 23, 2011, the University respondents filed a Reconsideration Request in respect of the Tribunal’s Interim Decision (2011 HRTO 1408) denying the University respondents’ Request to dismiss the Application. In light of the oustanding Reconsideration Request, the Tribunal did not schedule a telephone conference hearing.
h. In a Reconsideration Decision, 2011 HRTO 2039, the Tribunal rejected the University respondents’ Request for Reconsideration.
7In a further CAD dated November 15, 2011, the Tribunal stated that it would now address the applicants’ Requests to amend their Applications. The Tribunal sought submissions from the parties regarding the Requests. It wrote:
...the applicants must file with the Tribunal and deliver to the respondents written submissions setting out the nature of all of the amendments they seek to make and their arguments as to why the Tribunal should allow the proposed amendments. Given the number and nature of the Requests already filed, the delays that have be occasionned, and the late stage of these proceedings, once the Tribunal has determined the outstanding Requests to amend, the applicants may be precluded from filing Requests seeking further amendments without first obtaining leave of the Tribunal.
8The parties have filed submissions as directed.
THE REQUESTS TO AMEND
9Much of the parties’ submissions in response to the November 15, 2011 CAD relate to the merits of the proposed amendments. The applicants set out detailed arguments and allegations; the respondent denies the allegations and explains in detail the basis for its denial. At this stage of the proceeding, I make no finding as to the merits of the proposed amendments. My role is to determine whether, in light of the principles set out above, it would be fair, just and expeditious to allow the applicants to amend their Applications in the circumstances.
10In his submissions, the applicant Bernard states that he wishes to pursue the following requests to amend:
a. Request to amend the Application to include allegations that a 2008 investigation report constitutes reprisal (included in Request filed June 3, 2011);
b. Request to amend the Application to include allegations of reprisal concerning a letter of reprimand issued by the dean on February 22, 2010 (included in Request filed February 2, 2011);
c. Request to amend the Application to include allegations of reprisal concerning the threat of a civil law suit contained in a letter dated September 21, 2011 (included in Request filed October 3, 2011); and
d. Request to amend the Application to amend the remedies requested (inclued in Request filed September 4, 2011).
11In his submissions, the applicant Harpelle indicates that he wishes to amend the Application to include allegations that the 2008 investigation report constitutes reprisal. He further asks that he be allowed to amend the Application to include further allegations of ongoing reprisal, including a failure to provide a healthy work environment, discrimination in response to a 2008-2009 Annual Report, defamation of character and loss of opportunity, failure to provide a timely response to the 2009-2010 Annual Report; and unequal treatment in “routine matters”. Harpelle also asks to amend his Application to amend the remedies requested.
12Along with his submissions, Harpelle included documents, which he has labeled “email exchange concerning the settlement of outstanding issues.” The Tribunal has not reviewed these documents or taken them into account in rendering this Interim Decision. As the respondents point out, settlement discussions between parties are confidential and it is not appropriate that they be submitted to me as the decision-maker in this matter.
13The University respondents states that they object to the proposed amendments given (among other things) their nature, the complexity of the case, and the delay they would entail.
ANALYSIS
14In determining requests to amend applications under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondents. See Dube v. Canadian Career College, 2008 HRTO 336.
15The 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.
16On 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.
17While 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.
18The 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.
19I 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 concening 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.
20The 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.
REQUEST FOR INTERIM REMEDY
21Along with their submissions in response to the Tribunal’s November 15, 2011 CAD, the applicants have requested a number of interim remedies, including that the University respondents’ former legal counsel provide original documents to a third party; that the University respondents cease to reprise against the applicants; that they change their hiring practices; and that they cease to defame the applicants.
22Granting an interim remedy is an extraordinary step. It involves requiring the respondents to take certain actions prior to a hearing on the merits of the application and before any violation of the Code has been proven.
23The conditions for awarding an interim remedy are set out as follows in Rule 23.2:
The Tribunal may grant an interim remedy where it is satisfied that:
a) the Application appears to have merit;
b) the balance of harm or convenience favours granting the interim remedy requested; and,
c) it is just and appropriate in the circumstances to do so.
24In TA v. 60 Montclair, 2009 HRTO 369, at para. 23, the Tribunal held that the fundamental consideration in determining whether to award an interim remedy is:
whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.
25The Tribunal in TA v. Montclair, supra, also noted that an applicant seeking an interim remedy will have a significant onus to meet to demonstrate that the Request meets the three elements in Rule 23.2 and is necessary to further the remedial objects of the Code. See also Kwan v. Hospital for Sick Children, 2009 HRTO 621.
26The respondents have not been given an opportunity to fully respond to the applicants’ Requests for Interim Remedy. However, even based only on the applicants’ submissions, I am not satisfied that the applicants have met the significant onus of establishing that their Requests for Interim Remedy meet the criteria in Rule 23.2 and is necessary to further the remedial objects of the Code.
27At this early stage of the proceeding, it is difficult for me to assess whether or not the Applications appear to have merit. Even assuming (without deciding) that the Applications do have merit, I cannot conclude that the balance of harm or convenience favours awarding the interim remedy sought or that it would be just and appropriate in the circumstances. First, it is not entirely clear to me that the Tribunal has the necessary jurisdiction to award parts of the interim remedy requested by the applicants. Second, some the issues raised in the Applications and the Requests for Interim Remedy (that the University change its staffing practices) have potentially broad consequences for the parties and for candidates for employment. In my view, it is not appropriate in the circumstances to consider imposing such a remedy without a full evidentiary record and full submissions from the parties. Third, much of the interim remedy is the very relief sought in the Applications. As noted in Vella v. City of Toronto, 2011 HRTO 1831 at para.10, the fact that the interim remedy corresponds (at least in part) to the final remedy is a relevant factor. The applicant is essentially asking the Tribunal to grant (in part) the final remedy without first making a determination on the merits of the application. In this case, the parties’ pleadings outline conflicting arguments on complex factual issues, which will require a full evidentiary record and submissions for adjudication.
28For all of these reasons, the Requests for Interim Remedy are denied.
SUMMARY
29In all of these circumstances, I find that it is appropriate to allow the applicants to amend the Applications to include allegations of reprisal concerning the 2008 investigation report and its scope. I also find that is appropriate to allow the applicants to amend the remedies section of their Applications.
30Applying the legal principles set out at paras 14-20, I find that it is not appropriate to allow the further proposed amendments. They would significantly broaden the scope of the Applications at a late stage in the proceedings and would likely significantly delay the proceedings.
31For the reasons set out above, the applicants’ Requests for Interim Remedy are denied.
32Within 35 days of the date of this Interim Decision, the respondents may file an amended Response to the Applications.
33Within 45 days of the date of this Interim Decision, the applicants my file an amended Reply.
34The Tribunal will schedule a three-day in-person hearing to address the merits of the Applications.
Dated at Toronto this 23rd day of February, 2012.
”signed by”__________________
Michelle Flaherty
Vice-Chair