HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Kerr

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community, Safety and Correctional Services and operating as the Ontario Provincial Police

Respondent

INTERIM DECISION

Adjudicator: Kathleen Martin Date: November 24, 2008 Citation: 2008 HRTO 305 Indexed as: Kerr v. Ontario (Community, Safety and Correctional Services)

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging that the applicant was discriminated against in employment on the basis of disability. This interim decision addresses a Request to Intervene filed by the Ontario Provincial Police Association and establishes a procedure for hearing the preliminary arguments raised by the respondents in their Response.

REQUEST TO INTERVENE BY OPPA

2On September 17, 2008, the Ontario Provincial Police Association (“the OPPA”) filed a Request to Intervene. In its request, the OPPA indicated that it is the bargaining agent for employees of the Ontario Provincial Police, including the applicant. The OPPA described the issue(s) it wished to address as “any Section 45 and Rule 14 application to defer the complaint”. It further explained that it did not wish the Application to be deferred as there is no other “pending disposition”.

3The applicant objects to the intervention on the basis that he attempted “…to resolve this matter through the OPPA and they responded with a letter supporting the OPP…”. The respondents are “neutral” while noting there is no request for deferral and there are no ongoing proceedings related to the human rights allegations.

4In the circumstances, given the limited basis on which the OPPA was seeking intervention and the absence of those issues in this proceeding, there appears to be no basis for its intervention. The Tribunal therefore denies the OPPA’s request to intervene.

Background to Preliminary Issues

5The Application does not set out the particular allegations of discrimination, but instead refers to an Appendix One which is comprised of correspondence, a set of emails, and several documents or excerpts from documents. In the Form 1-A to the Application, the applicant checks off the box that he experienced discrimination in being denied necessary accommodation or modified work. However, in answering the other questions, and having regard to the documents contained in Appendix One, it appears that the applicant is alleging that he was required to attend medical appointments by the respondent under an attendance support program and then was denied payment of expenses related to those appointments. The applicant seeks reimbursement of $6,711.76 in mileage and other expenses incurred when complying with these requests to attend doctor appointments as a remedy for the alleged discrimination.

6In its Response, the respondent denies the allegations and makes a number of preliminary arguments including a request to dismiss for delay, and for failure to allege facts which would amount to a breach of the Code.

7The applicant did not file a Reply.

Decision

8On my review of the material in this Application, I find it fair, just and expeditious to require the parties to attend an oral hearing to address the preliminary issues raised by the respondent.

9At the hearing, the parties should be prepared to address the following issues:

• Whether and how the facts of this Application, even if assumed to be true, establish a violation of the Code;

• Whether this Application should be dismissed because of delay. Section 34 of the Code requires that applications to the Tribunal be made within one year of the last incident of alleged discrimination unless an applicant can show any delay was incurred in good faith and there was no substantial prejudice to any respondent. The applicant should be prepared to provide detail as to the dates that the alleged discriminatory actions occurred and explain any delay in complaining about those. The respondents should be prepared to present any evidence and argument they have in respect of the preliminary argument on delay.

10In order to ensure that the parties have a full opportunity to address these issues, the Tribunal makes the following directions:

1. No later than 20 days from the date of this decision, the applicant shall file with the Tribunal and deliver to the other parties a Reply which must include any additional facts that he wishes to rely on in support of his claim that the respondent has violated the Code;

2. No later than 14 days prior to the hearing, all parties shall file with the Tribunal and deliver to the other parties, copies of all documents and any case law they wish to rely on at the hearing of the issues identified above.

11The Tribunal draws the applicant’s attention to the applicant’s guide, available on the Tribunal’s website or from the Registrar’s office, for assistance in preparing for the hearing. The Guide, at pages 2-3, provides a list of resources available to applicants appearing before the Tribunal.

12The Registrar is directed to send a copy of this decision to the parties and the OPPA.

[13] I am not seized.