Borde v. Hitachi Truck Manufacturing, 2013 HRTO 1524

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rene Borde Applicant

-and-

Hitachi Truck Manufacturing Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: September 11, 2013 Citation: 2013 HRTO 1524 Indexed as: Borde v. Hitachi Truck Manufacturing

WRITTEN SUBMISSIONS

Rene Borde, Applicant Dijana Simonovic, Counsel

Hitachi Truck Manufacturing, Respondent Melanie McNaught, Counsel

Introduction

1This Interim Decision addresses the applicant’s request to adjourn the preliminary hearing scheduled for September 25, 2013. It also addresses other issues relating to the preliminary hearing. This Interim Decision was prepared based on the parties’ correspondence as of September 5, 2013. The delay in issuing this Interim Decision occurred due to delays in processing it for final release.

2By Case Assessment Direction (“CAD”) dated February 27, 2013, the Tribunal ordered a preliminary hearing to address the respondent’s request that the Application be dismissed as an abuse of process and/or under s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). According to the respondent, a settlement dated September 15, 2011 resolved all outstanding matters relating to the applicant’s employment with the respondent and/or the termination of his employment. The respondent submitted that, in the settlement, the applicant released all claims against the respondent including potential claims under the Code. As a result, the respondent argues that permitting this Application to proceed would be an abuse of process. Alternatively, the respondent submitted that the Application should be dismissed under s. 45.1 of the Code because the substance of the Application was appropriately dealt with by the grievance procedure and the settlement.

3The applicant claimed that the respondent coerced him into signing the settlement when it knew that his mental health competencies were severely compromised at the time. The applicant also claimed that he was not given the opportunity to seek independent legal advice with respect to the settlement.

4According to the respondent, it had no reason to suspect that the applicant’s mental health competencies were compromised when he agreed to the settlement. The respondent also states that the applicant was represented by his union and was invited to take away the settlement to seek advice.

5In my February 27, 2013 CAD, I ordered a one day in person preliminary hearing since some of the facts relied on by each of the parties are either disputed or otherwise challenged by the other party.

Adjournment Request

6The preliminary hearing was initially scheduled for August 29, 2013 and rescheduled for September 25, 2013 by Notice of Preliminary Hearing dated August 7, 2013. This Notice was sent to the applicant’s counsel who was retained on July 11, 2013.

7By e-mail dated September 5, 2013, the applicant’s counsel requested that the preliminary hearing be adjourned. She submitted that she would not be in a position to address the s. 45.1 issue without receiving the respondent’s full Response on the merits. She also submitted that, in order to make comprehensive legal submissions on the s. 45.1 issue, she would require the applicant’s union file from the Canadian Autoworkers Local 1917 (the “union”). The applicant’s counsel proposed that the September 25, 2013 preliminary hearing should be used solely to deal with the abuse of process issue.

8By e-mail of the same date, the respondent’s counsel objected to the applicant’s request because the s. 45.1 and abuse of process issues are inextricably linked. The respondent also argued that, if the applicant intends to rely upon documents from the union, it could subpoena a representative of the union to attend the hearing to testify and/or provide any required documents. The respondent indicated that it was unclear whether the union received notice of the preliminary hearing. The respondent advised that it would prefer to adjourn the preliminary hearing rather than have its two preliminary objections heard separately.

9By reply e-mail, the applicant’s counsel argued that the preliminary hearing should be adjourned to provide the union with notice of the preliminary hearing. She restated her position that she requires a full Response on the merits to address both the abuse of process and s. 45.1 issues. She also indicated that the applicant had self-drafted his Application and that it may be of assistance to the Tribunal and the respondent to have a more detailed and particularized Application. Finally, she requested that the preliminary hearing should be scheduled for 2 or 3 days due to the likely number of witnesses who would be called.

10In the circumstances of this case, I grant the applicant’s adjournment request. I note that the applicant’s union has been copied on all Tribunal correspondence in this matter including the February 27, 2013 CAD, the April 4, 2013 Notice of Confirmation of Hearing and the August 7, 2013 Notice of Preliminary Hearing. However, I accept that the applicant may require additional information from the union to respond to the respondent’s request to dismiss the Application. It is for this reason that I have agreed to adjourn the preliminary hearing of this matter. As set out below, I direct the union to confirm whether it plans to attend the preliminary hearing. If the union elects not to attend, it is open to either party to subpoena any additional information or witnesses it requires from the union.

Request for full response

11I do not agree that it is necessary for the respondent to file a full Response on the merits in order for the applicant to be in a position to respond to either the s. 45.1 or abuse of process issues. The central issues in the preliminary hearing is whether the September 15, 2011 settlement of the applicant’s grievance appropriately dealt with the substance of the Application and whether, in light of the settlement, permitting the Application to proceed would be an abuse of process. Under Rule 8.2 of the Tribunal’s Rules of Procedure, a respondent who alleges that the issues in dispute in the Application are the subject of a full and final signed release between the parties need not respond to the Application prior to requesting an early dismissal of the Application. I find that the issues relating to the settlement are discrete preliminary issues that can be appropriately addressed without a full Response from the respondent.

Request for Additional Hearing Days

12I also do not agree that the preliminary hearing should be scheduled for 2 or 3 days, as requested by the applicant’s counsel. The Tribunal routinely schedules half day teleconference hearings to hear requests to dismiss such as the present one. Due to the disputed facts in this case, I found it appropriate to order a one day in person preliminary hearing. I continue to believe that the preliminary issues raised by the respondent can be appropriately dealt with in a one day hearing.

filing of More Particularized Application

13The applicant’s counsel noted in her last correspondence that it may be of assistance to the Tribunal and the respondent in filing a full Response to have a more detailed and particularized Application from the applicant. As noted above, I find that the respondent is not required to file a full Response at this time. Therefore, there is no need for the applicant to file a more detailed Application. If the applicant wishes to amend his Application, he must follow the process set out in the Tribunal’s Rules of Procedure by filing a Request for an Order During Proceedings.

ORDERS

14In light of the above, the Tribunal orders as follows:

a. The September 25, 2013 preliminary hearing is adjourned. The Registrar shall reschedule the one day in person preliminary hearing.

b. Within 14 days of the date of this Interim Decision, the union shall advise the Tribunal in writing, with a copy to the parties, whether it will seek to participate in the preliminary hearing.

c. The respondent should be prepared to proceed first at the rescheduled preliminary hearing.

d. Given the issues in the preliminary hearing, the parties may wish to call witnesses to support any assertions that are either disputed or otherwise challenged by the other party. If the parties do intend to call witnesses, they shall provide a list of witnesses and detailed statements of each witness’ expected evidence to the other party no later than 21 days prior to the rescheduled preliminary hearing.

e. Any party wishing to rely on written materials, including documentary evidence or caselaw not already filed with the Tribunal, must deliver such materials to the other party and file them with the Tribunal no later than 21 days prior to the rescheduled preliminary hearing.