Sharras v. Rouge Valley Health System, 2008 HRTO 222

Human Rights Tribunal of Ontario

BETWEEN:

Yvonne Sharras Applicant

-and-

Rouge Valley Health System, Sheri Bredewold and Canadian Union of Public Employees, Local 4365 Respondents

INTERIM DECISION

Adjudicator: David A. Wright Date: November 4, 2008 Citation: 2008 HRTO 222 Indexed as: Sharras v. Rouge Valley Health System

Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto ON M7A 2A3 Phone (416) 326-1312 / 1-866-598-0322 / Fax (416) 326-2199 / Toll Free 1-866-355-6099 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@ontario.ca Website http://www.hrto.ca

WRITTEN SUBMISSIONS BY

Yvonne Sharras, Applicant ) Glen Morrison, Representative Canadian Union of Public Employees, Local 4365, Respondent ) Risa Pancer, Representative Rouge Valley Health System and Sheri Bredewold, Respondents ) Shane Smith, Counsel

Reasons for Decision

1In previous interim decisions in this matter, Sharras v. Rouge Valley Centennary Hospital et al., 2008 HRTO 73 and Sharras v. Rouge Valley Health System, 2008 HRTO 105, the Tribunal identified issues that may affect its jurisdiction and sought a statement of facts from the Ontario Human Rights Commission (the “Commission”) and submissions from the parties on whether the application is barred because of s. 53(8) of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”).

2The Commission’s statement contains information equivalent to the statement it made in Patterson v. Somebuddy’s Restaurant and Eatery, 2008 HRTO 160. It states that the Commission does not treat an application as formally “filed” until it has been assessed for accuracy and completeness. It states that this application did not go through this process and that the Commission therefore did not consider it “filed”.

3In their submissions, the respondents Rouge Valley Health System and Bredewold (the “hospital respondents”) argue that “the Commission’s submissions put forward an interpretation of when a complaint is ‘filed’ that contradicts its own published statements on this very question”, citing various documents on the Commission’s web site. It argues that these documents suggest that a complaint was “filed” at the Commission under the old Code when it was signed and received at the Commission. Counsel for these respondents also states:

In light of the significant contradiction in the Commission’s submissions to the Tribunal and its published statements on this issue, the Commission was contacted by counsel for the Respondents to bring this contradiction to its attention and inquire as to any reason or explanation for this difference. The Commission’s only response was that its position was as set out in its submissions and that it would reply to any submissions made by the respondent on the issue.

Despite not being a party to these proceedings, it appears that the Commission has taken on the role of advocate. This raises concerns on behalf of the Respondents as to the motives of the Commission and the reliability of the information it has provided to the Tribunal. The Respondents are particularly concerned about the Commission advancing an interpretation of the Human Rights Code that does not accord with its published position and refusing to address this concern when brought to its attention by the respondents.

4Subsequently, the Commission wrote to the Tribunal and requested “the opportunity to respond to what appears to be a mistaken assumption that certain information contained in my previous letter dated October 8, 2008 somehow contradicts our published statements.”

5In light of the information and submissions now before the Tribunal, I find that it is appropriate to hold an oral hearing to determine the issue of the Tribunal’s jurisdiction over this application. The Tribunal will hear evidence and submissions on the preliminary issue previously identified, and may also hear submissions on any other preliminary or jurisdictional issues the parties raise.

6In these circumstances, it is appropriate to seek a further statement of facts from the Commission that addresses the apparent differences between the facts provided by the Commission and those submitted by counsel for the respondent. The Commission’s statement should not include submissions on the proper interpretation of s. 53(8), but should set out facts related to the Commission’s case processing and its treatment and categorization of complaints under the old Code.

7Accordingly, the Tribunal orders as follows:

1. By November 12, 2008, the Commission shall file and deliver to the parties a statement of facts, without argument, setting out any reason or explanation for the difference identified by counsel for the hospital respondents in his submissions.

2. By November 12, 2008, the parties shall identify any other preliminary or jurisdictional issues they wish to raise in addition to those identified by the Tribunal in its previous decisions, through a letter to the registrar, copied to the other parties.

3. The Registrar shall schedule a one-day oral hearing in this matter.

4. The parties shall identify any witnesses they wish to call on the preliminary and jurisdictional issues and provide a brief summary of their expected evidence by letter to the registrar, copied to the other parties, at least two weeks prior to the date of the hearing.

5. The Tribunal may issue further directions about the manner in which the hearing will proceed following receipt of the additional materials identified above.

8Finally, the style of cause is amended to reflect the correct names of the respondents Rouge Valley Health System and Sheri Bredewold as indicated by respondents’ counsel.