Minawi v. Toronto Star Newspapers Limited, 2015 HRTO 340

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hesham Minawi Applicant

-and-

Toronto Star Newspapers Limited, GCC/IBT – Graphic Communications Conference/International Brotherhood of Teamsters Union, Local 100-M Respondents

INTERIM DECISION

Adjudicator: David Muir Date: March 17, 2015 Citation: 2015 HRTO 340 Indexed as: Minawi v. Toronto Star Newspapers Limited

1This Interim Decision deals with various Requests filed by the Applicant on February 8, 2015.

2This Application has been deferred by an Interim Decision of the Tribunal.

3The circumstances leading to the decision to defer are outlined in the Tribunal’s Interim Decisions 2014 HRTO 914 and 2014 HRTO 1103, and again in 2015 HRTO 140. In this latter Interim Decision the Tribunal described the history of the proceeding to date as follows:

• The applicant works for the respondent Toronto Star Newspapers Limited and is a member of the respondent union. He alleges that his failure to succeed in a job competition for a higher paying position was tainted by discrimination.

• The applicant’s union filed a grievance on his behalf. The allegations in the grievance and this Application are identical.

• The executive of the union local later decided not to proceed with the grievance. The applicant filed an application with the Ontario Labour Relations Board (the “Board”) alleging that the union breached its duty of fair representation, contrary to s. 74 of the Labour Relations Act, 1995, S.O. 1995, c.1. He also filed a second application with the Board alleging that the respondent employer engaged in an unfair labour practice. Both applications allege the same violations of the Code.

• The Board consolidated the two applications by treating the second one as an amendment of the first application. It convened a case conference on June 2, 2014 and the parties agreed to adjourn the application in order for the applicant to use the union’s internal appeal procedure to contest the decision not to proceed with his grievance.

4The applicant sought reactivation of this Application on July 7, 2014 which request was denied in 2014 HRTO 1103

5The applicant sought reactivation for a second time on November 3, 2014 which was denied in 2015 HRTO 140. The Tribunal denied this further request on the basis that none of the circumstances leading to the initial deferral had changed; i.e., there remained ongoing proceedings initiated by the applicant which raised the same issues as were in dispute in this Application. Having decided that the Application should not be reactivated, the Tribunal concluded that it was not necessary to deal with the applicant’s other requests to amend and expedite the hearing of his Application.

6Shortly after the release of 2015 HRTO 140 on January 30, 2015, the applicant filed a number of Requests on February 8, 2015. In a Request for Order During Proceeding the applicant renews his request to reactivate this Application. In the same Request the applicant seeks Orders to consolidate this Application and the Ontario Labour Relations Board (“OLRB”) application; add the OLRB as a party to the Application and amend the Application. In addition, the applicant has filed a Request for a Tribunal Ordered Inquiry; a Request for Reconsideration; a Request to Expedite Proceedings and a Request for Interim Remedy.

7For the reasons that follow these Requests are all denied.

Request for Order

8The Request for Order is denied. In particular, the request to reactivate the Application is denied for the reasons set out in 2015 HRTO 140. Nothing has changed in the circumstances that would justify the reactivation of this case at this stage.

9The requests to add the OLRB as a party to the Application and consolidate this Application with his application before the OLRB are both denied. The Tribunal has no jurisdiction to consolidate its proceedings with those of another statutory tribunal. As regards the request to add the OLRB as a party, it would be inappropriate to grant a request to amend in light of the fact that this Application is currently deferred. However, I would also observe that there do not appear to be any allegations made against the OLRB that engage the Code. I would also point out that to the extent that the applicant is aggrieved by the actions of the OLRB it appears to be in relation to the OLRB’s decision making in his case and this is likely not a matter that this Tribunal would have jurisdiction to deal with because of the doctrine of judicial immunity.

10Similarly, the applicant’s requests for production are denied at this stage because the Application is deferred.

Request for Reconsideration

11The Request for Reconsideration is denied. In his Request the applicant alleges the “Company and Union Breached & Violated HRTO & OLRB Codes which are conflicting with each other” and these factors outweigh the public interest in the finality of Tribunal decisions.

12Rule 26.1 of the Tribunal’s Rules of Procedure provides that a party may request reconsideration of a final decision of the Tribunal. A decision will only be considered a final decision where the decision has the effect of finally determining the substance of the dispute or a central element of the dispute between the parties. See for example Ontario Human Rights Commission v. Ontario Teachers’ Federation, 1994 CanLII 10578 (ON SC).

13In Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34, the Tribunal considered at length the question of when a decision should be considered final for the purposes of the reconsideration power. After carefully considering the policy issues and the relevant authorities, the Tribunal concluded:

As a general principle, having regard to the approach taken in other forums as well as the above discussion, it is reasonable to view a “final decision” as one that disposes of some or all of the central issues in the complaint as between the parties. This general principle will take on a more precise shape as the Tribunal applies it to cases before it.

14Having considered these authorities, I have concluded that the Interim Decision is not a final determination. I find that it does not deprive the applicant of “any prospect of a remedy” as against the respondent, and does not dispose of any part of the Application let alone the entirety of it. Not being a final decision, it cannot be the subject of a reconsideration request. See Galuego v. Kensington Health Centre, 2009 HRTO 49.

Requests for Tribunal Ordered Inquiry; Request for Expedited Proceedings and Request for Interim Remedy

15Several of these Requests were dealt with previously in 2015 HRTO 140 and for the same reasons I would deny them. I would also observe that both the Requests to Expedite Proceedings and the Request for Interim Remedy require that the applicant file statutory declarations. The applicant has not filed the required materials in either case and they would be denied for this reason as well.

Other Matters

16In its Response to these various Requests, the respondents raised again their concern with the applicant’s conduct of these proceedings – his continued non-compliance with the Tribunal’s Rules as well as his persistent and concurrent correspondence with the Tribunal and the OLRB. The respondents complain that having to respond to successive procedural requests when the Tribunal has deferred the Application imposes unnecessary costs on the respondents. The respondents argue that the applicant has conducted the proceeding in a vexatious manner and seek an Order from the Tribunal that the applicant be required to obtain permission of the Tribunal to take further steps in this proceeding.

17The applicant has written at least twice to the Tribunal since the respondents raised these issues, but has not responded to the respondents’ Request.

18The Tribunal has the authority to control its process and has a responsibility to make such Orders as are required to prevent an abuse of its process. See Rule A8 of the Tribunal’s Rules of Procedure.

19I too have some concern with an emerging pattern of apparently pointless requests of various kinds, most particularly where the Application has been deferred. Such requests, which in the circumstances of this case cannot be granted, impose a burden on the other parties to the process and require the Tribunal to utilize resources that can be better used on other matters.

20In the circumstances, the applicant is directed to cease making procedural requests such as Requests for Order etc., until the circumstances are such that he is able to file a Request to reactivate this Application. Until there is an Order of the Tribunal reactivating this Application, the respondents need not respond to any Requests of the applicant unless directed to do so by the Tribunal

21The applicant is also directed to cease providing what I would characterize as updates of his circumstances which include further allegations of discrimination. Although this correspondence is placed on the file when it has been delivered to the other parties these updates are not added to the allegations in the Application. In the event that this Application is reactivated the Tribunal may entertain a Request to amend the Application at that time.

ORDERS

22The Tribunal makes the following Orders:

a. The Requests of the applicant are denied for the reasons set out above;

b. The applicant is prevented from filing any further procedural requests such as Requests for Order etc., until the circumstances are such that he is able to file a Request to reactivate this Application. Pending an Order of the Tribunal reactivating this Application, the respondents need not respond to any Requests of the applicant unless directed to do so by the Tribunal

c. The applicant is directed to cease providing updates of his circumstances which include further allegations of discrimination pending the reactivation of this Application, at which time it may be appropriate that he file a Request for Order to amend the Application.

23I am not seized of this case.