Thomas v. IATSE Local 822, 2013 HRTO 353

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rose Marie Thomas Applicant

-and-

IATSE Local 822, Domenic Marcone, Cheryl Batulis, Heather Clarkson, Mathew Loeb, David Mirvish, Blair Egglestone, IATSE 58, IATSE 129, IATSE 461, Maple Leaf Sports and Entertainment Ltd., Ontario Teachers’ Pension Fund Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty Date: March 1, 2013 Citation: 2013 HRTO 353 Indexed as: Thomas v. IATSE Local 822

WRITTEN SUBMISSIONS

Rose Marie Thomas, Applicant Self-represented

IATSE Local 822, Cheryl Batulis, Heather Clarkson, Mathew Loeb, Blair Egglestone, IATSE 58, IATSE 129 and IATSE 461, Respondents Andrea Bowker, Counsel

David Mirvish, Respondent Stephen Bernofsky, Counsel

Maple Leaf Sports and Entertainment Ltd., Respondent Gita Anand, Counsel

Ontario Teacher’s Pension Plan Board, Respondent Donna D’Andrea, Counsel

Domenic Marcone, Respondent No submissions received

Introduction

1The purpose of this Interim Decision is to determine whether consideration of this Application should be deferred pending the Tribunal’s determination of another Application, Tribunal file number 2009-02058-I (“2009 Application”).

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondents discriminated against her in employment, contracts, and in membership in a vocational association based on disability and sex. She also alleges reprisal or threat of reprisal.

3The respondents deny the allegations of discrimination. Many of them ask to be removed, for example, because they say there are no allegations against them or because the allegations have no reasonable prospect of success. I note that the applicant has filed two Requests to Amend the Application (“Requests”), seeking to provide additional particulars and add a number of parties. These Requests have not yet been determined.

4As I indicated in my Case Assessment Direction (“CAD”) of November 12, 2012, there appears to be some overlap in the facts and issues raised in this and the 2009 Application. In the 2009 Application, the applicant alleges, among other things, that the personal respondent Marcone sexually harassed her. She states that the Shaw Festival Foundation, IATSE Local 461 (Niagara), and a number of personal respondents failed to appropriately address the harassment. She also alleges that the respondents reprised against her, in particular because she raised concerns about smoking in the workplace.

5In this Application, the applicant alleges that after the alleged incidents described in the 2009 Application, she and Marcone both worked in the same venues in Toronto. She states that the respondents discriminated against her by, among other things, failing to “prevent the reoccurence of the harassment.” The applicant further alleges that the respondents failed to investigate her harassment allegations and that they reprised against her.

ANALYSIS

6Rule 14 of the Tribunal’s Rules of Procedure states that the Tribunal may defer consideration of an application on such terms as it may determine, on its own initiative or at the request of any party.

7Deferral ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer an application where there is ongoing litigation based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings: see, for example, Cailloz v. Buyer Broker Realty, 2010 HRTO 2113.

8On November 12, 2012, I issued a CAD requesting submissions from the parties as to whether this matter should be deferred pending the Tribunal’s determination of the 2009 Application. In my CAD, I indicated that similar facts and issues appeared to arise in both applications, notably concerning the alleged harassment by Marcone and the alleged failure to investigate.

9In her submissions in response to the CAD, the applicant does not address the deferral issue, nor does she dispute that similar facts and issues arise in both applications. Rather, she argues that the two matters ought to be heard concurrently because they relate to incidents that occurred some time ago and because the 2009 Application is already in the process of being heard.

10Counsel for IATSE Local 822, Cheryl Batulis, Heather Clarkson, Mathew Loeb, Blair Egglestone, IATSE 58, IATSE 129, IATSE 461 (“Union respondents”) argues that this Application should be deferred. She argues that the success of many of the allegations contained in this Application depend on (a) factual determinations made in the context of the 2009 Application; and (b) whether or not the applicant establishes discrimination in the 2009 Application. Counsel for the Union respondents further argues that her clients would be prejudiced if this matter were joined with litigation that is already ongoing.

11Counsel for Maple Leaf Sports and Entertainment Ltd. and Counsel for the Ontario Teachers’ Pension Plan Board each filed submissions taking no position on the deferral issue but arguing that the Application should be dismissed as against them because they are improperly named and/or because the Application raises no prima facie case of discrimination against them.

12Counsel for David Mirvish submits that a deferral is appropriate, given the overlapping factual and legal issues in the two applications.

DECISION

13I am satisfied that there is a significant overlap between this and the 2009 Application. Both matters raise similar legal and factual issues and, as counsel for the Union Respondents points out, the success of this Application will depend in part on the factual conclusions the Tribunal makes in the 2009 Application. In my view, the most fair, just, and expeditious manner of proceeding is to defer consideration of this Application pending the Tribunal’s determination of the 2009 Application.

14There is no basis to consolidate this and the 2009 Application. To do so would not only unduly complicate the hearing of the 2009 Application, it would be fundamentally unfair to require parties to now participate in litigation that has been ongoing for some time.

15Finally, in her submissions in response to the CAD, the applicant has asked for “a postponement” in order to (a) deal with an issue regarding Tribunal procedure that the applicant has brought to Associate Chair Wright’s attention; and (b) discuss her other file with a commissioner’s office. It is not at all clear to me that the applicant has provided any appropriate basis to postpone this matter. However, in light of my decision to defer consideration of this matter, it is not necessary for me to determine whether a postponement is appropriate.

ORDER

16In all of the circumstances, for the reasons I have explained, it is appropriate to defer consideration of this matter until the Tribunal has determined the 2009 Application.

17The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the determination of the 2009 Application.