Barron v. York Region District School Board, 2013 HRTO 97

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: January 18, 2013

Citation: 2013 HRTO 97

Indexed as: Barron v. York Region District School Board

WRITTEN SUBMISSIONS

Rusty Barron, Applicant

Arthur Zeilikman, Counsel

York Region District School Board, Respondent

Patricia G. Murray, Counsel

introduction

1The applicant filed this Application on April 29, 2009 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”). Subsequent to the filing of the Application, the applicant alleges that he was subject to ongoing harassment and discrimination by the respondent. On November 15, 2010, his employment was terminated. The issue to be addressed in this Interim Decision is whether to allow the applicant to amend his Application at this stage to include those subsequent events.

2This issue first came to light at a preliminary hearing on October 19, 2012, that was to address the respondent’s Request for an Order During Proceedings to dismiss the Application under s. 45.1. It is common ground that the applicant filed numerous grievances that were addressed in an arbitration before Paula Knopf. These grievances addressed both issues that were raised in the Application, as well as matters that post-dated the Application (including the termination of the applicant’s employment).

3The applicant acknowledged that the substance of the initial Application had been appropriately addressed in the arbitration. On the basis of that concession, those allegations were dismissed in an Interim Decision issued on October 24, 2012 (2012 HRTO 2027).

4However, in the written submissions filed two days in advance of the preliminary hearing by his newly retained counsel, the applicant took the position that the events subsequent to the initial filing of his Application were not appropriately dealt with at the arbitration. The question arose whether the applicant could even raise these events, given that he had not made a formal request to amend his Application. It was not possible to address this issue at the hearing as none of the parties were in a position to argue it.

5The applicant was advised that if he wished to amend his Application, he would have to bring a Request for an Order During Proceedings (“Request”) to do so. The timeline for doing this was set out in the October 24, 2012 Interim Decision. The applicant brought the Request to amend, and the respondent responded to that Request in a timely fashion.

background facts

6The applicant takes the position that he attempted to amend his Application two times in June and August 2009, respectively, by sending in emails to the Registrar in which he included documents detailing events post-dating the Application. Indeed, in the first email, dated June 30, 2009, the applicant states, “Please amend the following incidences from the time of initial filing.”

7Although apparently sent to a valid Tribunal address, neither email is in the Tribunal file. It is possible that because the email was not copied to the respondent, it was returned to the applicant or otherwise not retained. In any event, the Tribunal no longer has a record of such emails being sent. However, the file does contain a number of references to subsequent events, on which the applicant appears to rely.

8In early August 2009 – around the time of the second email – the applicant filed a Request for an Order During Proceedings, sent on the wrong form, in which he asks the Tribunal to expedite the proceeding. The respondent advises on August 14, 2009 that it will not respond to the Request to expedite until it is sent on the correct form. The applicant then filed a second Request for an Order During Proceeding (Form 10) on August 21, 2009 in which he asks to expedite his Application.

9The first request states that it is being made “due to ongoing working conditions that include retaliation, work injuries, discrimination and other violations of my human rights [emphasis added].” Both Requests to expedite set out the incidents the applicant alleges he endured subsequent to the filing of his Application.

10The Tribunal did not rule on the Request to expedite (indeed, the respondent appears not to have responded to the second request), but instead sent out a Notice of Mediation. This mediation took place on January 10, 2010. On January 26, 2010, the applicant delivered a Request for an Order During Proceedings asking to withdraw his Request to expedite on the basis that he had been moved to a new work location and was no longer subject to the same treatment that led to his Request to expedite in the first place.

11There was to have been a second, extended mediation, held at the request of the parties, but the applicant withdrew his support in April 2010 as a result of recent “circumstances.” He asked for a hearing to be scheduled instead.

12This hearing was scheduled for January 2011, but the respondent wrote to the Tribunal to advise that it was not available on the dates and suggested alternative dates in April 2011. When the applicant wrote on September 16, 2010 to object to the hearing being re-scheduled, he stated he was now on sick leave as a result of what he alleged was the respondent’s failure to accommodate in the work force.

13Finally, on November 22, 2010, the applicant wrote a letter to the Tribunal, which included the following paragraph:

My Employer has seen fit to terminate my employment effective Nov 15^th 2010; While on medical leave and under the care of my Family doctor and WSIB. I intend to argue the grounds for my termination and I would like to reiterate my interest in Due Process regarding my entire trial.

Events previously outlined in my initial filing date back 33 months to February 2008.

14The applicant’s April, September and November correspondence to the Tribunal all noted that it was copied to the respondent’s counsel.

15There is no response to the applicant’s correspondence, and before a new date could be re-scheduled, the respondent filed a Request for an Order During Proceeding on December 20, 2010 asking the Tribunal to defer the Application to the grievance process. In the body of its Request to defer, the respondent set out the nine grievances filed by the applicant during the period from July 2009 to November 2010. It also set out, in some detail, its position concerning the one-month period leading up to the termination of the applicant’s employment.

16The Tribunal issued an Interim Decision on February 14, 2011 (2011 HRTO 311) in which it deferred the Application pending the completion of the grievance process. It remained deferred until it was re-activated on May 11, 2012 (2012 HRTO 955) following a Request to Reactivate filed by the applicant after the issuance of Arbitrator Knopf’s Award.

17In the intervening period, the applicant filed a Request to consolidate this Application with an Application filed against his union, CUPE Local 1374 (“CUPE”), the intervenor in the instant matter. The Application against CUPE, filed on May 6, 2011, contained many of the allegations in the instant Application as well as the subsequent events leading up to, but not including, the termination of the applicant’s employment.

18This Request was served on the respondent to this Application although not, for some reason, the respondent’s representative. There is no Form 11 from the respondent in this matter or correspondence from the respondent acknowledging the Request.

19Rather than addressing the Request to consolidate, the Tribunal conducted a Summary Hearing at which it dismissed the Application against CUPE (2012 HRTO 520) on the following basis:

The failure to advocate as strenuously on his behalf as he would like, or in the way in which he would like, however, cannot in itself amount to discrimination under the Code. Again, the applicant has not pointed to evidence upon which he could rely to indicate that his disability was a factor in the union’s decisions.

20In the Interim Decision reactivating this instant Application (2012 HRTO 955), the Tribunal directed that a half-day, in-person hearing be held to hear the respondent’s request to dismiss this Application under s. 45.1 or as an abuse of process.

21The applicant filed a Request for an Order During Proceedings to defer processing this Application until the conclusion of the appeals of various matters underway at the Workplace Safety and Insurance Board (“WSIB”). This request was opposed by the respondent and intervenor.

decision and analysis

22I have set out this somewhat protracted history of the applicant’s various requests and actions because it demonstrates his interest in having the Tribunal address the post-Application allegations (i.e., the ongoing difficulties he experienced with his employer, ending with the termination of his employment). Indeed, the tenor of the applicant’s correspondence and various Requests is that having raised these issues, they now formed part of this Application. At no point was he advised to amend his Application by filing a separate Form 10.

23Throughout this period, the applicant was unrepresented. The respondent describes the applicant as a “sophisticated litigant,” but his understanding of Tribunal jurisprudence and procedures was not so advanced as to appreciate that following the conclusion of his employment relationship with the respondent in November 2010, it might have been prudent to file a Request to amend his Application.

24The respondent also submits that when the applicant withdrew his Request to expedite, he was, in effect, advising the Tribunal that he was no longer relying on the post-Application allegations – that, in essence, the alleged wrongs had been righted by the transfer to the new work environment and supervisor. This argument would have more strength had the applicant remained satisfied with the new working arrangements, but his subsequent correspondence and Requests suggest that his satisfaction was short-lived.

25The respondent asserts that the Tribunal can presume prejudice as a result of the passage of time. However, given that the subsequent events were (at least in part) the subject of an arbitration that proceeded until January 2012 (and was decided in February 2012), the respondent was required to organize and retain its evidence long after the employment relationship ended. I am not prepared to presume prejudice.

26The respondent also points to the fact a publicly funded school board, with limited resources, will be prejudiced by being required to defend itself in multiple fora. This does not go to whether the amendments should be allowed, but may be relevant with respect to whether the amended Application should be dismissed pursuant to s. 45.1 of the Code or as an abuse of process.

27The respondent does not argue, in the alternative, that certain portions of the amended allegations are improper and should not be included. I would note that on their face, some of the paragraphs contain more than factual allegations. For example, in paragraph 36, the applicant argues that the arbitrator made her decision “without full regard to the nature of the Applicant’s injuries,” which is more in the nature of argument.

28I am not in a position to parse the paragraphs, having not heard argument from counsel for the parties. Suffice to say, allowing the amendments does not preclude the respondent or intervenor from subsequently asserting that certain allegations or matters are not properly before me.

29Accordingly, the applicant’s request to amend this Application to include the allegations found at paragraphs 12-45 of Schedule “A” to his November 1, 2012 Request is granted.

next steps

30As I indicated in my Interim Decision dated October 24, 2012 (2012 HRTO 2027), the Tribunal might further direct that a hearing be held to address the outstanding s. 45.1/abuse of process issues in the event that the Application was amended. Having reviewed the written submissions of the parties with respect to these issues, it would appear that such a hearing would be appropriate.

31The Tribunal is directed to schedule a half-day, in person hearing to hear argument on whether the amended Application should be dismissed, in whole or in part, on the basis of s. 45.1 of the Code or as an abuse of process. The parties are directed to indicate at the time they file their written submissions (as directed below) if they wish to proceed by way of written submissions alone.

32It is not necessary for the respondent to file an amended Response to the amended Application, but given that the scope of the abuse of process/s. 45.1 issues has been widened, it would be appropriate for the respondent to file amended written submissions with respect to these issues. These submissions should be filed four weeks from the date of this Interim Decision.

33If these submissions raise new issues, not already addressed in the applicant’s written submissions on s. 45.1 and abuse of process, the applicant may file reply submissions within two weeks of receipt of the respondent’s submissions. In any event, the applicant is directed to advise the Tribunal whether he wishes to proceed by way of written submissions alone by this date.

order

34In sum, I have made the following order/directions:

a. The applicant’s request to amend this Application to include the allegations found at paragraphs 12-45 of Schedule “A” to his Request for an Order During Proceedings to amend his Application dated November 1, 2012 is granted;

b. The Tribunal is directed to schedule a half-day, in person hearing to hear argument on whether the amended Application should be dismissed, in whole or in part, on the basis of s. 45.1 of the Code or as an abuse of process;

c. The parties are directed to indicate at the time they file their written submissions if they wish to proceed by way of written submissions alone;

d. The respondent is not required to file an amended Response to the amended Application at this time;

e. The respondent is, however, directed to deliver to the parties and file amended written submissions with respect to the s. 45.1/abuse of process issues. These submissions should be filed four weeks from the date of this Interim Decision; and

f. If the respondent’s submissions raise new issues, not already addressed in the applicant’s written submissions on s. 45.1 and abuse of process, the applicant may deliver to the parties and file reply submissions within two weeks of receipt of the respondent’s submissions.

Dated at Toronto, this 18^th day of January, 2013.

”signed by”

Naomi Overend

Vice-chair