Barron v. York Region District School Board, 2012 HRTO 955

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: May 11, 2012

Citation: 2012 HRTO 955

Indexed as: Barron v. York Region District School Board

wRITTEN SUBMISSIONS

Rusty Barron, Applicant ) Self-represented

York Region District School Board, ) Patricia G. Murray, Counsel

Respondent )

Canadian Union of Public Employees, ) Ryan Goldvine, Counsel

Intervenor )

1The applicant filed this Application alleging discrimination in employment on the basis of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). By Interim Decision, 2011 HRTO 311, this Application was deferred pending the completion of a grievance arbitration proceeding.

2On March 26, 2012, the Tribunal wrote to the parties requesting a status update with respect to the arbitration process and on April 10, 2012, the applicant filed a Request for an Order During Proceedings asking to reactivate his Application.

3The intervenor, the Canadian Union of Public Employees ("CUPE") filed a Form 11 in which it noted that it took no position on the reactivation request, but wanted the opportunity to clarify what it submitted were factual inaccuracies. The respondent filed a Form 11 in which it stated that it objected to the request on the basis of either s. 45.1 or the doctrine of abuse of process.

4The respondent does not, per se, object to the reactivation of the Application, but only the applicant's request to allow his matter to continue to a hearing. In any event, the applicant has filed his Request in a timely fashion and included a copy of the decision in the grievance proceeding, which are the only two requirements set out in the Tribunal's Rules of Procedure. Accordingly, it is appropriate to reactivate his Application.

5The respondents have requested that the Tribunal dismiss the Application on the basis of section 45.1 of the Code. Section 45.1 of the Code provides:

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.

6In the alternative, the respondent submits that for the same reasons as it set out in its submission on dismissal under s. 45.1, "to permit this Application to proceed would be an abuse of process."

7The Tribunal concurs that it is appropriate to hold a half-day in-person hearing to determine whether the grievance proceeding has appropriately dealt with the substance of the Application (section 45.1) or whether to proceed would amount to an abuse of process. A hearing by teleconference will be scheduled by the Registrar. The directions below will apply to the hearing.

ORDERS

8I make the following orders/directions:

a. the Application is reactivated;

b. a half-day in-person hearing on the requests to dismiss pursuant to section 45.1 of the Code or as an abuse of process will be scheduled by the Registrar;

c. the following directions will apply to the hearing:

i. the hearing will address only the question of dismissal pursuant to section 45.1 of the Code or the doctrine of abuse of process;

ii. the respondent should be prepared to proceed first at the hearing; and

iii. any party wishing to rely on written materials not already filed with the Tribunal or any facts not contained in the Applications or Responses must deliver such documents or information to the other parties and file them with the Registrar no more than 21 days prior to the scheduled hearing date.

9I am not seized.