Cooray v. Ontario (Attorney General), 2016 HRTO 1642

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cecil Cooray Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General, Beverly Leonard, Barbara Krever and Michael Fernandez Respondents

AND BETWEEN:

Cecil Cooray Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General, Justice F. P. Kiteley, Justice E. R. Kruzic, Beverly Leonard, Barbara Krever and Michael Fernandez Respondents

INTERIM DECISION

Adjudicator: Josée Bouchard Date: December 20, 2016 Citation: 2016 HRTO 1642 Indexed as: Cooray v. Ontario (Attorney General)

WRITTEN SUBMISSIONS

Cecil Cooray, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General, Justice F.P. Kiteley, Justice E.R. Kruzic, Beverly Leonard, Barbara Krever and Michael Fernandez, Respondents Jonathan Rabinovitch, Counsel

Introduction

1These Applications were filed under s. 34 of the Human Rights Code, RSO 1990, c. H.19 as amended. The purpose of this Interim Decision is to determine whether these Applications should be consolidated, whether file 2013-15741-I should be reactivated, and whether file 2015-20799-I should be deferred pending the outcome of another proceeding.

2On June 11, 2013, the applicant filed a grievance under the collective agreement between his union and the respondent alleging that he was discriminated against on the basis of age and gender.

3On October 15, 2013, the applicant filed Application 2013-15741-I (“first Application”) alleging discrimination with respect to employment on the basis of race, colour, place of origin, gender identity, gender expression, age and reprisal or threat of reprisal.

4On March 19, 2014, the Tribunal deferred the first Application, on consent of the parties, pursuant to Rule 14 of the Tribunal’s Rules of Procedure, pending the completion of another proceeding, namely the filing of a grievance dealing with the subject-matter of the Application.

5On April 14, 2015, the applicant filed Application 2015-20799-I (“second Application”) alleging discrimination with respect to employment on the basis of race, colour, place of origin, gender identity, age and reprisal or threat of reprisal.

6On June 1, 2015, the Grievance Settlement Board (“GSB”) issued GSB Decision 2013-3008 (“Arbitration Award”) dismissing the June 11, 2013 grievance. The applicant filed an application to the Ontario Labour Relations Board (“OLRB”) alleging unfair representation by his union, the Ontario Public Service Employees Union (“OPSEU”).

7On May 30, 2016, the Tribunal issued a Notice of Application in which it requested submissions on whether the first and second Applications should be consolidated and whether the second Application should be deferred pending the conclusion of the grievance proceeding.

8The OLRB issued Decision 1594-15-U (“OLRB Decision”) on June 6, 2016 dismissing the allegation of unfair representation.

9On July 4, 2016, the applicant filed a Request for an Order During Proceedings (“RFOP”) related to the first and second Applications. The applicant submits that he does not oppose the consolidation of the two Applications. Consolidation, in his view, would benefit witnesses who have to appear in both proceedings and would eliminate delays and expenses. However, the applicant indicates that the first Application should be heard first and the second heard immediately after the first. He maintains that the two Applications are separate complaints even though they are repetitions of the same offence, two years apart, with the same management. He explains that the second Application also includes two judges who were not named in the first Application, and additional allegations against those judges.

10The applicant objects to the deferral of the second Application. He argues that he filed an application for judicial review of the OLRB Decision and believes the proceedings before the Superior Court of Justice – Divisional Court may take two to three years.

11The respondent filed submissions on July 5, 2016 regarding the issues of consolidation and deferral, and requesting that the personal respondents be removed as parties to the Applications. The respondent also argues that the Application is largely illegible: it is handwritten in a manner that is difficult and, at times, impossible to decipher. The respondent requests that the applicant be directed to provide typed, amended applications setting out in clear, numbered paragraphs in chronological order the allegations upon which he relies upon to support his Applications.

12On November 25, 2016, the applicant filed with this Tribunal a Superior Court of Justice – Divisional Court Hearing Request Form to show that the hearing date for the judicial review application of the OLRB Decision has been agreed to by counsel/parties for June 29, 2017.

analysis and decision

13For the reasons below, the Applications are consolidated and Application 2015-20799-I is deferred pending the conclusion of the grievance/arbitration process, including the judicial review proceeding.

14The Tribunal may deal with the other preliminary issues if the Applications proceed.

Consolidation

15Rule 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.

16In 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 sets 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.

17The parties agree to the consolidation of the Applications. Although these are two separate Applications involving incidents that are two years apart, and the second Application involves two judges and additional allegations against the judges, the Applications involve the same corporate party, the same subject matter, the same type of alleged discrimination that arises out of the same set of facts that occurred over a period of time. There is a compelling public interest in avoiding a multiplicity of proceedings and, accordingly, the Tribunal orders Applications 2013-15741-I and 2015-20799-I consolidated.

Reactivation of First Application

18In his RFOP, the applicant indicates that he requests the reactivation of a deferred Application but does not appear to make submissions on that issue. On November 25, 2016, the applicant informed the Tribunal that he is proceeding before the Superior Court of Justice – Divisional Court with a judicial review application of the OLRB Decision.

19It appears that the grievance/arbitration process, including the judicial review proceeding, has not concluded. Accordingly, the request to reactivate Application 2013-15741-I is denied.

Deferral of Second Application

20On March 19, 2014, the Tribunal deferred the first Application, pending the completion of another proceeding, namely the filing of a grievance dealing with the subject-matter of the Application. The second Application has not been deferred.

21The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

22The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

23The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

24In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Arbitration Award and the second Application. The matter is still live and the process has not concluded. A decision of the Superior Court of Justice – Divisional Court on judicial review of the OLRB Decision could have an impact on the outcome of the Arbitration Award. In addition, the first and second Applications have been consolidated and it is fair, just and expeditious to defer both Applications until the conclusion of the grievance/arbitration process. However, if the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Applications brought back on before the Tribunal.

25Application 2015-20799-I will therefore be deferred pending the completion of the grievance/arbitration process, including the judicial review proceeding.

26The 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 conclusion of the grievance process. Where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules of Procedure and Forms can be found on its website at www.sjto.gov.on.ca/hrto/.

order

27For the reasons stated above, I hereby make the following order:

a. Applications 2013-15741-I and 2015-20799-I are consolidated and will be heard together;

b. The request to reactivate Application 2013-15741-I is denied; and

c. Application 2015-20799-I is deferred pending the conclusion of the grievance/arbitration process, including the judicial review proceeding.

28I am not seized of this matter.

Dated at Toronto, this 20th day of December, 2016.

“Signed By”

Josée Bouchard Vice-chair