HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bill Koitsis
Applicant
-and-
Ajax Automotive (2008) Inc. o/a Ajax Nissan
Respondent
AND B E T W E E N:
Bill Koitsis
Applicant
-and-
Midway Nissan
Respondent
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: Koitsis v. Ajax Nissan
WRITTEN SUBMISSIONS
Bill Koitsis, Applicant
No submissions filed
Ajax Automobile (2008) Inc. o/a Ajax Nissan, Respondent
Israel Balter, Counsel
Midway Nissan, Respondent
Hermie Abraham, Counsel
1The applicant has filed two Applications. This Interim Decision determines whether or not the two Applications should be heard together.
background
2File 2014-19285-S is filed under Rule 24 of the Tribunal’s Rules of Procedure as an Application for Contravention of Settlement (“the breach of settlement Application”) against the respondent Ajax Automobile (2008) Inc. o/a Ajax Nissan (“Ajax Nissan”). A half day, in-person hearing was scheduled for and commenced on May 15, 2015.
3File 2014-19286-I is filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of gender identity, gender expression, age and reprisal or threat of reprisal (“the reprisal Application”) against the respondent Midway Nissan (“Midway Nissan”). The reprisal hearing is scheduled for July 22, 2015.
4Ajax Nissan intends to call Charles Chun as a witness in the breach of settlement hearing. Mr. Chun works for Midway Nissan.
5At the May 15, 2015 hearing, I stated that I would issue a Case Assessment Direction seeking the parties’ submissions on both of these Applications, specifically whether or not the two Applications should be heard together, and the impact, if any, of Mr. Chun testifying as a witness in the breach of settlement Application when his employer, Midway Nissan, is the respondent in the reprisal Application. I stated that I did not feel that it was fair to receive submissions that day from the individuals from Midway Nissan who were sitting in the hallway as Midway Nissan is not a party to the breach of settlement Application. They were also not in the hearing room when this was discussed.
6A subsequent Case Assessment Direction dated May 26, 2015 (“the May 26 CAD”) was issued in which the Tribunal sought the parties’ submissions on the following:
Should the Tribunal consolidate or hear together the Applications in file 2014-19285-S and 2014-19286-I?
Are the parties available on July 22, 2015, the date the reprisal Application is scheduled for hearing?
What impact, if any, is there on Midway Nissan if one of its employees testifies in the breach of settlement Application before the reprisal Application is heard?
What concerns, if any, do the parties to the breach of settlement Application have about Midway Nissan learning about the terms of the minutes of settlement which the applicant is alleging Ajax Nissan breached? Do those concerns apply to the entire minutes of settlement or can terms, other than the one alleged to have been breached, be redacted or blacked out? and
Should be the breach of settlement Application be deferred pending conclusion of the reprisal Application?
7The parties were directed to file submissions with the Tribunal, copying the other parties, by June 5, 2015. Ajax Nissan and Midway Nissan filed submissions. While the applicant filed materials in relation to a Case Assessment Direction that was issued in relation to the breach of settlement Application, he did not file submissions in relation to the May 26 CAD and the time for doing so has elapsed.
The respondents’ submissions
Ajax Nissan
8Ajax Nissan submits that the two Applications should be heard together and confirms that it is available on July 22, 2015 for a hearing. The Applications are based upon the same factual situation, and the respondents would both be relying upon the same witnesses. It would be absurd to require all of the witnesses to give evidence at two hearings that deal with the same fact pattern and raise common issues of fact and law. Ajax Nissan submits that not only would this lead to a repetition of evidence, but there is the possibility of inconsistent results between the two hearings, resulting in unfairness to the respondents. There would be no prejudice to either respondent with this approach as evidence given in one proceeding would not be used as evidence against them in the other proceeding.
9Furthermore, the hearing will not be considerably lengthened for either respondent. There is no potential for confusion that may result from the introduction of evidence that may not relate to allegations specifically involving one respondent or the other. The Tribunal is capable of sorting out the evidence as it relates to the particular allegations or respondent. The Tribunal will have the benefit of hearing all the evidence that is truly relevant.
10Ajax Nissan submits that the Tribunal should not defer the breach of settlement Application until the reprisal Application has concluded. To hold the reprisal Application ahead of the breach of settlement Application would, by definition, mean that the Tribunal would make a finding about what occurred at the meeting between the applicant and Midway Nissan without the benefit of all the surrounding circumstances and evidence and could bind the Tribunal in the subsequent breach of settlement Application. This could prejudice Ajax Nissan and could affect the outcome of the breach of settlement hearing as the Tribunal would be adverse to making a finding that is inconsistent with the reprisal Application. It would be contrary to public policy to have inconsistent findings about the same set of facts made in two Tribunal decisions.
11Ajax Nissan submits that it does not have any concerns with Midway Nissan learning about the terms of the Minutes of Settlement. Having commenced these Applications, the applicant has chosen to make the terms of the Minutes of Settlement public. The applicant cannot now be heard to seek the protection of the Tribunal with respect to the confidentiality of a covenant that he has now suggested has been breached repeatedly by Midway Nissan.
Midway Nissan
12Midway Nissan also favours the Applications being heard together although it submits that it and Ajax Nissan are two distinct companies and traditionally competitors in the Durham region. Though the interests of the respondents are not necessarily adverse as it pertains to the Applications, they are also not the same, and each has chosen to obtain its own counsel to advance its interests and its legal case.
13Like Ajax Nissan, Midway Nissan submits that several witnesses that it intends to call, Charles Chun and Robert Weindorfer, who work for Midway Nissan, will also be called as witnesses for Ajax Nissan. Given the significant overlapping evidence and witnesses in the Applications, hearing the evidence together will give all parties the opportunity to present their cases efficiently, examine and cross-examine common witnesses, and avoid costly and repetitive litigation. Having witnesses appear to testify before the Tribunal on two separate occasions, on similar evidence, risks inconsistent findings of the same facts and evidence and does not serve the public interest of avoiding multiplicity of proceedings.
14It opposes consolidation. Midway Nissan submits that the grounds and remedies sought in each Application are different. A finding that Midway Nissan did or did not discriminate against the applicant as alleged in the reprisal Application does not resolve the breach of settlement Application against Ajax Nissan, and vice versa. The remedies that the applicant seeks in the Applications are different. Furthermore, if an Application is upheld by the Tribunal, there is no way for the remedies to be jointly and severally apportioned between the respondents.
The Applicant’s Submissions
15As set out above, despite the May 26 CAD being sent to him, the applicant has not filed any submissions in relation to these issues and the time for doing so has elapsed. The applicant did, however, file additional materials following the issuance of the May CAD in the breach of settlement Application.
analysis
16In Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together. In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:
(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;
(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and
(c) Whether there are common issues of fact or law.
17While the respondents are not the same, their interests may not align, and the legal issues may differ between the breach of settlement Application and the reprisal Application, in the circumstances of these Applications, it is appropriate to hear the two Applications together.
18Both Applications arise out, essentially, the same set of facts. In both, the applicant alleges that he attended Midway Nissan to obtain employment and was told by Mr. Chun that Midway Nissan would not hire him because he had filed a human rights application against Ajax Nissan. Mr. Chun was identified by Ajax Nissan as a witness in the breach of settlement Application, as is now Mr. Weindorfer, and witness statements have been filed about their anticipated evidence. Mr. Chun and Mr. Weindorfer are also identified as witnesses for Midway Nissan and witness statements have been filed about their anticipated evidence in the reprisal Application. It is also anticipated that the applicant will testify in both proceedings about his interaction with Mr. Chun and Midway Nissan.
19Both Applications will require the hearing adjudicator to make findings of credibility between the applicant and, at least, Mr. Chun. The applicant and Mr. Chun will be required to testify in both proceedings. There is the possibility of inconsistent findings of credibility between these two witnesses if the two Applications are not heard together.
20In addition to the duplication of evidence, there is the public interest in the Tribunal avoiding multiplicity of proceedings based upon similar facts.
21Even if the breach of settlement Application were to be deferred until the conclusion of the reprisal Application, Messrs. Chun and Weindorfer may still be required to give evidence, depending upon what evidence they presented at the hearing of the reprisal Application.
22Accordingly, I find that it is most fair and expeditious that the Applications be heard together.
23As Ajax Nissan has submitted that it has no concerns about Midway Nissan learning about the terms of the Minutes of Settlement and the applicant has not complied with the Tribunal’s directions set out in the May 26 CAD to file submissions about these issues, the Minutes of Settlement will not be redacted during the course of the hearing. The Tribunal reminds Midway Nissan about Rule 3.3 of the Tribunal’s Rules, which provides, “Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal”.
24Ajax Nissan has confirmed that it is available on July 22, 2015, the date the reprisal Application is scheduled for hearing. Accordingly, the two Applications will be heard together on July 22, 2015. While it is not necessary, it may be helpful for the parties to exchange documentation upon which they will be relying at the hearing, and copies of the pleadings, so that no party is taken by surprise by documentation that may become relevant to their Application.
order
25The Tribunal orders:
a. The breach of settlement Application and the reprisal Application will be heard together on July 22, 2015.
Dated at Toronto, this 16^th^ day of June, 2015.
“signed by”
Alison Renton
Vice-chair```