HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Gynane Applicant

-and-

Lakehead District School Board Respondent

interim decision

Adjudicator: Sheri Price Date: January 23, 2013 Citation: 2013 HRTO 117 Indexed as: Gynane v. Lakehead District School Board

1This is an Application under s.34 of the Ontario Human Rights Code in which the applicant alleges that the respondent discriminated against him because of his age with respect to employment; and reprised against him contrary to s.8 of the Code. Among his other allegations, the applicant alleges that the respondent discriminated against him because of his age when it hired a candidate who was younger and less qualified than the applicant for a particular teaching position in late 2009/early 2010.

2A conference call was held in this matter on January 16, 2013 to address certain issues relating to the disclosure of documents and witnesses in advance of the hearing scheduled for February 6 and 7, 2013 in Thunder Bay.

3During the January 16, 2013 conference call, I also invited the parties to address the issue whether the candidate who was hired for the job in question (“the incumbent”) was entitled to notice of this proceeding on the basis that he was a potentially affected party. In particular, I wanted to clarify whether the remedy the applicant was seeking in this case could result in the displacement of the incumbent from the job in question. If so, it seemed to me that the incumbent might be entitled to notice of the proceeding: Gazankas v. Red Lake (Municipality), 2011 HRTO 302 at para. 11-18.

4During the January 16, 2013 conference call, the respondent also raised a question as to whether the incumbent might be entitled to notice of the proceeding pursuant to s.8 of the Statutory Powers Procedure Act, RSO 1990, c S.22 (“SPPA”), which states:

Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.

5Although there is no issue in this proceeding about the incumbent’s character or conduct, the respondent identified that there might be an issue as to his “competence” insofar as the applicant contends that he was more qualified than the incumbent for the job in question. I gave the respondent an opportunity to make any further submissions it wished to make on this issue by January 21, 2013. However, as it has not sought to do so, this ruling is based on the submissions and materials already before me. (The applicant did not wish to make further submissions on this issue.)

6The courts have held that a party who is “significantly affected or directly and necessarily affected” by the decision in a given proceeding is entitled to notice of that proceeding: C.U.P.E. v. C.B.C. (1990) O.J.; affirmed S.C.C. 1992 CanLII 108 (SCC), [1992] 2 S.C.R. 7 at p. 9 and Telecom. Workers Union v. Canada (C.R.T.C.), 1995 CanLII 102 (SCC), [1995] 2 S.C.R. 781, at p. 797, para. 32, as cited in Teamsters International Union, Local 847 v. Directors Guild of Canada, 2003 CanLII 13648 (ON SCDC) at para. 8; and National Automobile v. Pharma Plus Drugmarts Ltd., 2011 ONSC 4188 at para. 85.

7Having carefully considered the matter, I am of the view that the incumbent is not significantly affected or directly and necessarily affected by the outcome of the Application and is therefore not entitled to notice of the proceeding. There are a couple of reasons for this.

8First, during the January 16, 2013 conference call, the applicant clarified that he is not seeking any remedy that would displace the incumbent from his job at the school in question. In my view, as the incumbent is not at risk of losing his job as a result of this proceeding, what might have otherwise been a basis for giving notice does not exist in the circumstances of this case.

9In addition, although there is some jurisprudential support for the proposition that, in some circumstances, decision-makers ought to afford non-parties an opportunity to be heard before making a decision that adversely reflects on their “good character and integrity” (Hurd v. Hewitt, 1994 CanLII 874 (ONCA)), as noted above, the incumbent’s character, integrity and/or behaviour is not at issue in this case.

10Nor, in my view, is there any obligation to give the incumbent notice pursuant to s.8 of the SPPA. As I read it, s.8 relates to the obligations of parties to a proceeding to furnish one another with particulars of their allegations; it does not require parties to furnish particulars to non-parties.

11In the circumstances, I find that there is no obligation to give the incumbent notice of this proceeding.

Dated at Toronto, this 23rd day of January, 2013.