Jurgen (Jerry) Degen v. City of Toronto and Toronto Professional Fire Fighters’ Association, Local 3888, 2008 HRTO 433

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jurgen (Jerry) Degen

Applicant

-and-

City of Toronto and Toronto Professional Fire Fighters’ Association, Local 3888

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: December 29, 2008

Citation: 2008 HRTO 433

Indexed as: Degen v. Toronto (City)

1The applicant filed an Application on September 3, 2008 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment and contracts on the grounds of disability and reprisal or threat of reprisal.

2The applicant originally named Toronto Fire Services and Toronto Professional Fire Fighters’ Association, Local (3888) (the “Association”) as respondents. The City of Toronto (the “City”) has responded on behalf of Toronto Fire Services to advise that it is properly the respondent to the Application. The style of cause is amended accordingly.

3The respondents request that the Tribunal dismiss the Application because in 2005 the applicant filed a reprisal complaint under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended (“the OHSA complaint”) at the Ontario Labour Relations Board (the “OLRB”). The City further alleges that pages 1 – 8 of the chronology at Section 8 of the Application (the “chronology”) relate to the OHSA complaint and do not relate to the enforcement of a right under the Code.

4The respondents also request that the Tribunal dismiss the Application or alternatively defer the Application because the applicant filed claims (WSIB claim #2351559 and WSIB claim #24210051) under the Workplace Safety and Insurance Act, 1997, S.O. 1997 c.16 (the “WSIA”). Alternatively, the respondents request that the Tribunal defer those parts of the Application which are encompassed by WSIB claim #2420051 pending finalization of the WSIB appeal process.

5The respondent City also takes the position that the Application is not timely as it was not filed within one year of the incident(s) to which it relates.

6The respondent Association submits that the format in which the Application was made, an annotated diary of events, makes it difficult for the Association to determine the extent of the applicant’s allegations against it.

Decision

7While the respondents did not expressly refer to provisions of the Code, I will treat their submissions as requests for relief made pursuant to sections 34(1), 45 and 45.1 of the Code.

8Section 34(1) of the Code provides:

If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

a) within one year after the incident to which the application relates; or

b) if there was a series of incidents, within one year after the last incident in the series.

9Section 34(2) of the Code provides:

A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

10Section 45 of the Code provides:

The Tribunal may defer an application in accordance with the Tribunal rules.

11Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

12Rule 22 of the Tribunal’s Rules of Procedure provides:

22.1 The Tribunal may dismiss all of part of the Application where it determines, under section 45.1 of the Code, that another proceeding has appropriately dealt with the substance in part of all of an Application.

22.2 The parties will have the opportunity to make oral submissions before the Tribunal dismisses an Application under Rule 22.1.

13In the circumstances it appears to be most consistent with a fair, just and expeditious process to schedule an oral hearing to address the respondents’ preliminary issues.

14At the hearing, the parties should be prepared to provide submissions and, if necessary, evidence on the following issues:

a. Should the Tribunal dismiss the Application, in whole or in part, pursuant to section 45.1 because the substance of the Application has been appropriately dealt with by the OHSA complaint and/or WSIB claim #2351559 or WSIB claim #24210051?

b. Should the Tribunal defer those parts of the Application which are encompassed by WSIB claim #2420051 pending finalization of the WSIB appeal process?

c. Was the Application filed within one year after the last incident of discrimination? If not, was the delay in filing the Application incurred in good faith and with no substantial prejudice to the respondent(s)?

d. Do the incidents in the Application up to November 28, 2005 raise allegations of harassment and/or discrimination on a prohibited ground covered by the Code? If not, should that part of the Application relating to events prior to November 28, 2005 be dismissed?

e. Do the events described in the Application raise allegations of harassment and/or discrimination on a prohibited ground covered by the Code against the Association? If not, should the Application be dismissed against the Association?

15If the parties wish to rely on any supporting material for the purposes of the hearing of these issues (including submissions, facts or case law not already provided in the Application and Responses), the parties are directed to deliver this material to each other, and the Tribunal, by no later than two weeks before the date scheduled for the hearing.

16The 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.

17I am not seized of this matter.