David Muir

HRTOHuman Rights Tribunal of OntarioJun 13, 2012

Human rights application deferred pending resolution of concurrent grievance arbitrations on identical issues.

The applicant filed a human rights application alleging discrimination in employment based on family status.

The Tribunal issued a Notice of Intent to Defer the application pending the resolution of two concurrent grievance arbitrations dealing with the same subject matter.

The applicant opposed deferral due to delay in the grievance process, while the respondent supported it.

The Tribunal deferred the application, noting that the facts and human rights issues were virtually identical and that the grievance process remained active.

A request by the respondent to dismiss the application for being filed out of time was also deferred.

Timothy Baker v. Liquor Control Board of Ontario, 2012 HRTO 1165

David Muir

HRTOHuman Rights Tribunal of OntarioJun 13, 2012

Human rights application against OLRB official dismissed at preliminary stage due to judicial immunity.

The applicant filed a human rights application alleging discrimination and reprisal by an official of the Ontario Labour Relations Board, claiming the official provided bad faith advice that caused him to withdraw his OLRB application.

The Tribunal issued a Notice of Intent to Dismiss on the basis of judicial immunity.

Finding that the allegations related to the conduct and rulings of an official in the course of a hearing, the Tribunal concluded it was plain and obvious that the doctrine of judicial immunity applied and dismissed the application.

Rousay v. Ontario (Labour Relations Board), 2012 HRTO 1162

Tribunal excludes evidence of disciplinary incidents previously resolved through the grievance process as an abuse of process.

The applicant filed a human rights application alleging discrimination in employment based on race and colour, relying on a series of disciplinary incidents.

The respondents argued that several of these incidents were untimely and had already been resolved through the union grievance process.

In this interim decision, the Tribunal held that it would be an abuse of process to allow the applicant to re-litigate incidents of discipline that had been the subject of grievances and subsequently settled between the workplace parties.

The Tribunal excluded evidence regarding the resolved grievances, emphasizing the importance of finality in freely negotiated settlements.

Shaw v. Pepsico Foods, 2012 HRTO 1152

Kenneth J. Kelertas

2 cases2012–2012

David Muir

HRTOHuman Rights Tribunal of OntarioJun 12, 2012

Application held in abeyance pending leading Tribunal decisions on section 45.1 and OIPRD complaints.

The applicant filed an application alleging discrimination with respect to goods and services because of race and colour by the respondent police service.

The respondent sought early dismissal under section 45.1 of the Human Rights Code, arguing the substance of the application was dealt with through the Office of the Independent Police Review Director (OIPRD).

The Tribunal directed that the matter be held in abeyance pending the release of leading decisions on the application of section 45.1 to OIPRD complaints.

The applicant objected, but the Tribunal found it would be a poor use of resources to hear submissions before the leading decisions were released.

Chatur v. Halton Regional Police Services, 2012 HRTO 1149

David Muir

HRTOHuman Rights Tribunal of OntarioJun 8, 2012

Tribunal declined to dismiss application at preliminary stage after applicant clarified sexual harassment allegations.

The Tribunal issued a Notice of Intent to Dismiss the Application because the initial narrative failed to identify specific acts of discrimination under the Code.

In written submissions, the applicant clarified that the alleged pushing, shoving, and inappropriate behaviour constituted sexual harassment, and that subsequent treatment was reprisal for her complaints.

Applying the 'plain and obvious' test for preliminary dismissal, the Tribunal found it had jurisdiction to proceed and amended the Application to include the ground of sex.

J.L.C. v. McSound Investments Inc., 2012 HRTO 1134

Jason Green

15 cases2006–2014

David Muir

HRTOHuman Rights Tribunal of OntarioJun 7, 2012

Request to add employer as respondent and amend remedies granted in sex discrimination application.

The applicant filed a human rights application alleging sex discrimination in employment against her supervisor.

She subsequently brought a Request for Order During Proceeding to add her employer, Metroland Media Group Ltd., as a respondent and to amend her requested remedies.

The Tribunal applied the Smyth test and found that the employer was a proper party under section 46.3 of the Human Rights Code, which imposes vicarious liability on corporations for the acts of their employees.

The Tribunal also allowed the amendment to the requested remedies, noting that the proceeding was at an early stage and there was no prejudice to the respondents.

Charpentier v. Metroland Media Group Ltd., 2012 HRTO 1128

David Muir

HRTOHuman Rights Tribunal of OntarioJun 6, 2012

Tribunal denied document production request and directed hearing on whether age-restricted scholarship constitutes a special program.

The applicant alleged age discrimination after being denied a flight training scholarship restricted to persons aged 16 to 25.

In this interim decision, the Tribunal directed the matter to a one-day hearing to determine if the scholarship qualifies as a special program under the Human Rights Code.

The Tribunal also dismissed the applicant's request for production of documents regarding the respondent's internal communications about the Application, finding them irrelevant to the central issue, and directed the applicant to clarify whether he intended to pursue additional allegations of discrimination.

Jose Moreira v. COPA Flight 28 Inc. Ontario, 2012 HRTO 1121

David Muir

HRTOHuman Rights Tribunal of OntarioJun 1, 2012

Reconsideration granted and dismissal set aside where applicant's representative was incapacitated by a car accident.

The applicant requested reconsideration of a decision dismissing her human rights application for failing to respond to Tribunal directions regarding the status of a related WSIAT proceeding.

The applicant's representative provided evidence that he was incapacitated due to a car accident and did not receive the directions until after the dismissal decision was released.

The Tribunal found this constituted a failure of natural justice analogous to not receiving notice through no fault of their own.

The request for reconsideration was granted, the dismissal was set aside, and the applicant was directed to take steps to move the WSIAT proceeding forward.

Baccala v. Extendicare, 2012 HRTO 1100

Marty Rabinovitch

In Private Practice8 cases2012–2026

David Muir

Not Practising Law - Employed7 cases2011–2013

Request for reconsideration of human rights application dismissal denied for failing to meet threshold criteria.

The applicant requested reconsideration of a previous decision that dismissed his human rights application alleging employment discrimination based on citizenship by the respondent.

The applicant argued that the respondent's employment advertisements preferring Canadian citizens were discriminatory and not protected by section 16 of the Human Rights Code.

The adjudicator found that the applicant was attempting to re-argue issues already decided and failed to establish any new facts, conflict with established jurisprudence, or matters of general public importance.

The request for reconsideration was denied.

Bernhard Koenig v. University of Toronto, 2012 HRTO 1098

Timothy Bingham

Seann McAleese

9 cases1999–2017

Lewis Gotheil

1 case2012–2012

David Muir

Human rights application dismissed; prior grievance arbitration appropriately dealt with the substance of the allegations.

The applicant filed a human rights application alleging discrimination in employment by his former employer and his union.

The employer requested early dismissal under s. 45.1 of the Human Rights Code, arguing the matter was appropriately dealt with in a prior grievance arbitration.

The union requested dismissal on the basis of no reasonable prospect of success.

The applicant challenged the constitutionality of s. 45.1 under s. 7 of the Charter.

The Tribunal found that s. 45.1 does not violate the Charter, as it does not restrict fundamental personal life choices.

The Tribunal dismissed the application against the employer, finding the substance of the allegations was appropriately dealt with by the arbitrator.

The Tribunal also dismissed the application against the union, finding no reasonable prospect of success as the applicant failed to link the union's actions to a protected ground of discrimination.

Zelalem Gammada v. Mount Pleasant Group of Cemeteries and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) Local 1643, 2012 HRTO 1097

David Muir

Tribunal declined to dismiss application at preliminary stage despite concurrent civil action.

The applicant filed a human rights application alleging discrimination based on place of origin after being issued a trespass notice by the respondent college.

The Tribunal issued a Notice of Intent to Dismiss because the applicant had also commenced a civil suit related to the same subject matter.

The Tribunal found it was not plain and obvious that the civil claim, which did not explicitly reference the Code or seek a remedy under section 46.1, was the same as the human rights application.

The Tribunal directed that the application be delivered to the respondent for submissions on jurisdiction and deferral.

Chang Gen Hu v. Canadore College, 2012 HRTO 1088

David Muir

In Private Practice86 cases1986–2026

Tribunal dismisses untimely human rights allegations not forming a series of incidents with a timely reprisal claim.

The applicant filed a human rights application alleging discrimination and reprisal.

The Tribunal issued a Notice of Intent to Dismiss because several allegations appeared to be outside the one-year limitation period.

The applicant argued the events constituted a series of incidents.

The Tribunal found that the bulk of the allegations, dating back to 2003-2007 and late 2010, were out of time and not part of a series of incidents connected to the timely April 2011 reprisal allegation.

The untimely allegations were dismissed, and the individual respondents associated only with those allegations were removed from the application.

Lawrence v. Chrysler Canada Inc., 2012 HRTO 1087

Robert J. Reynolds

David Muir

Applicant permitted to amend human rights application to add claims for lost wages and legal costs.

The applicant sought to amend her human rights application to add claims for lost wages and legal costs.

The respondent consented to the lost wages amendment but opposed the legal costs amendment, arguing the Tribunal lacks jurisdiction to award costs.

The Tribunal granted both amendments, noting that while it has consistently held it lacks jurisdiction to award costs, allowing the amendment at this stage causes no prejudice to the respondent and permits the applicant to argue the point at the hearing.

McKinnon v. Reynolds O’Brien LLP, 2012 HRTO 1058

David Muir

Human rights application dismissed as abandoned after applicant failed to file required hearing materials.

The applicant filed an application alleging discrimination in employment based on family status and sexual orientation.

The applicant failed to comply with the Tribunal's Rules 16 and 17 regarding the delivery of witness lists, witness statements, and documents.

After failing to respond to a Case Assessment Direction warning that the application could be dismissed as abandoned, the Tribunal deemed the application abandoned and dismissed it.

Harrison v. Stephensons Rental Services Inc., 2012 HRTO 1057

Barry Brown

25 cases1983–2014

David Muir

Corporate employer added as respondent and individual vice-president removed from human rights application.

The applicant filed a human rights application alleging discrimination in employment and named an individual vice-president as the sole respondent.

The applicant subsequently filed a Request for Order During Proceedings to add the corporate employer, St. Clair College, as a respondent.

The Tribunal granted the request to add the corporate employer, finding it was in the best position to respond to the allegations regarding the applicant's employment and termination.

Applying the principles from Sigrist and Carson, the Tribunal also removed the individual respondent, as there was no compelling reason to maintain the application against him personally given the corporate respondent's vicarious liability.

Siddall v. St. Clair College of Applied Arts and Technology, 2012 HRTO 1056

David Muir

Individual respondent removed from human rights application as her involvement was not necessary for fair resolution.

The individual respondent brought a Request for Order During Proceeding seeking to be removed as a party to the human rights application.

The applicant alleged that the individual respondent made a complaint to management that formed part of the basis for the applicant's dismissal, constituting a reprisal.

The Tribunal applied the Persaud factors and found that the individual respondent was a minor player, her actions were in the course of employment for which the corporate respondent would be liable, and it was not necessary to involve her for a fair and expeditious resolution.

The request was granted and the individual respondent was removed from the application.

Medley v. First Intelligence Corp, 2012 HRTO 1055

Elizabeth J. Forster

9 cases1980–2014

David Muir

Respondent ordered to produce FSCO guidelines regarding group benefit insurance policies in disability discrimination claim.

The applicant in a human rights proceeding alleging discrimination based on disability sought an order for the production of documents related to the respondent's long-term disability policy and its definition of a pre-existing condition.

The Tribunal allowed the request in part, ordering the respondent to produce any relevant guidelines or policies issued by the Financial Services Commission of Ontario, as the respondent was in a better position to identify them even if they were in the public domain.

The Tribunal declined to order production of documents that the respondent stated did not exist.

Long v. Co-Operators Life Insurance Company, 2012 HRTO 1053

David Muir

HRTOHuman Rights Tribunal of OntarioMay 25, 2012

Respondent deemed to have accepted human rights allegations after failing to file a Response.

The applicant filed an application under section 34 of the Human Rights Code.

The respondent failed to file a Response despite receiving a Notice of Application and a subsequent Interim Decision warning of the consequences of failing to respond.

Pursuant to Rule 5.5 of the Tribunal's Rules of Procedure, the Tribunal deemed the respondent to have waived all rights to notice or participation and to have accepted all allegations in the Application.

The applicant was directed to submit any additional materials and advise if she wished to make oral submissions before a final determination.

Miki Shinozaki v. Hotlomi Spa, 2012 HRTO 1048

Jane M. Gooding

16 cases2009–2016

David Muir

HRTOHuman Rights Tribunal of OntarioMay 24, 2012

Service provider removed as respondent because the municipality solely determined transit eligibility criteria.

The respondent DARTS filed a Request for Order During Proceeding seeking to be removed from the human rights application.

The applicant alleged discrimination in services after being denied access to accessible transportation.

DARTS argued that it merely contracts with the City of Hamilton to provide transportation services, while the City establishes eligibility criteria and approves applications.

The City consented to the request.

The Tribunal found that DARTS played no role in the alleged discriminatory actions and removed it as a respondent.

McCarthy v. Hamilton (City), 2012 HRTO 1038

David Muir