Robert Strutt v. City of Toronto, 2008 HRTO 271

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Strutt

Applicant

-and-

City of Toronto

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: November 17, 2008

Citation: 2008 HRTO 271

Indexed as: Strutt v. Toronto (City)

Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto, ON M7A 2A3 Phone (416) 314-8419 / Fax (416) 314-8743 / Toll free 1-866-598-0322 TTY (416) 314-2379 / (toll free) 1-800-424-1168 E-mail hrto.registrar-transition@ontario.ca Website www.hrto.ca

1This is an Application filed August 25, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The complaint which underlies the Application was filed with the Ontario Human Rights Commission on February 6, 2008. The complaint alleges discrimination based on "age or race" in the provision of services related to the applicant's eligibility for and receipt of specialized training benefits under the Ontario Works Act, 1977, S.O. 1997, C. 25, Sch. A (the "OWA"). However, the complaint contains very few details.

3On September 17, 2008 the respondent wrote to the Tribunal clarifying that the named respondent, Ontario Social Services, should properly be named as the City of Toronto. Accordingly, the style of cause in this proceeding is amended to correct the name of the corporate respondent. On that date, the respondent sought an extension for filing its Response (Form B) until the applicant provided further particulars. The Registrar's office requested the respondent to file their Response and advised that the adequacy of the particulars of the Application could be best addressed at mediation.

4The respondent declined to file a Response.

5On October 8, 2008 the Tribunal scheduled a mediation for December 3, 2008.

6November 12, 2008 the respondent wrote the Tribunal refusing to participate in the mediation, and declined to file a Response until its request for particulars and an extension to file its Response was addressed by a written decision of the Tribunal.

7The Tribunal's Rules of Procedure for Applications under Section 53(3) of the Human Rights Code (Section 53(3) Rules) and the Tribunal's Guide to Section 53(3) Applications, contemplate that the first step in a section 53(3) application is mediation. If mediation is unsuccessful, the mediator will assist the parties to complete a case management checklist (Rule 8) and the Application proceeds to a case resolution conference in accordance with Rule 9.1.

8Where a party refuses to attend the mediation, it may impede the efficient processing of the Application, in which case the Tribunal may, in its discretion, issue a case management direction (Rule 5.14) directing the parties to attend at the Tribunal to complete the matters identified in the case management checklist. In this case, however, I am satisfied the Application can be processed expeditiously without requiring such attendance.

9In the circumstances of this case, and having regard to the Tribunal's Section 53(3) Rules, the mediation scheduled for December 3, 2008 is cancelled.

Failure to File a Response and Request for Particulars

10The Response requires the respondent to identify themselves, provide contact information, confirm the contact information of a representative, if any, and attach the response to the original complaint the respondent filed with the Ontario Human Rights Commission, if any. If the respondent has not previously provided a response to the complaint, the Response requires the respondent to provide a brief response to the complaint.

11The respondent's refusal to provide the above information until the applicant provides further particulars is puzzling. There is no prejudice to the respondent in filing the Response and indicating, as it has done in its letter of September 17, 2008, that it reserves its right to provide further information, once further particulars, if any, are forthcoming.

12The expedited process for section 53(3) applications does not contemplate the step requested by the respondent, the provision of further particulars, prior to mediation. Instead, if mediation is unsuccessful, or where a party declines to participate in mediation, the process moves to the next stage, the preparation for the hearing, called a case resolution conference. In accordance with Rule 9, at that stage, the applicant is required to provide additional facts (particulars, to use the respondent's choice of language) upon which he intends to rely.

13The obligation is on the applicant to set out sufficient facts and present sufficient evidence to establish a prima facie case of discrimination on a prohibited ground under the Code. If the applicant fails to do so, the application may be dismissed without calling upon the respondents to present any evidence. However, Section 43(2)1 of the Code requires that the applicant be given an opportunity to make oral submissions before an Application that is within the jurisdiction of the Tribunal is finally disposed of.

14In the circumstances, it appears to the Tribunal that the most fair, just and expeditious process is as follows:

a. Within 10 days following the date of this decision, the respondent shall deliver to the Applicant and file with the Tribunal its Response, attaching its original response to the complaint if any, and identifying any requests for particulars, if desired.

b. Within 30 days following the date of this decision, the applicant shall deliver to the respondent and file with the Tribunal, a statement of any additional facts the applicant intends to rely upon and a description of the remedies sought. In particular, the applicant's attention is directed to the questions set out in the respondent's letter of September 17, 2008. In addition, the applicant shall deliver to the respondent a copy of all arguably relevant documents in the applicant's possession, except where privilege is claimed.

c. Within 45 days following the date of this decision, the respondent shall deliver to the applicant and file with the Tribunal a statement of any additional facts the respondent will rely upon and the respondent's position with respect to the requested remedies. In addition, the respondent must deliver to the applicant a copy of all arguably relevant documents in the respondent's possession, except where privilege is claimed.

15The Tribunal will contact the parties to set a date for the case resolution conference. The parties are reminded that the Section 53(3) Rules contemplate that applications under section 53(3) of the Code be dealt with in an expedited manner.