Sharras v. Rouge Valley Health System, 2008 HRTO 454

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

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: December 31, 2008

Citation: 2008 HRTO 454

Indexed as: Sharras v. Rouge Valley Health System

APPEARANCES

Yvonne Sharras, Applicant ) Glen Morrison, ) Representative

Rouge Valley Health System and ) Shane Smith, Counsel Sheri Bredewold, Respondents )

Canadian Union of Public Employees, Local 4365, ) Risa Pancer, Respondent ) Representative

INTRODUCTION

1This decision addresses the Tribunal’s jurisdiction to hear this Application and the next steps in the process. The full procedural history of this matter is set out in the Tribunal’s previous decisions, reported at 2008 HRTO 72, 2008 HRTO 105, 2008 HRTO 222, and 2008 HRTO 384. An oral hearing was held on December 19, 2008.

BACKGROUND

2As of June 30, 2008, the system for enforcing rights under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) has been significantly amended. Before, individual complaints were only heard by the Tribunal if the Commission decided to refer them for a hearing. Now, applicants may file their claims (now called applications) directly with the Tribunal.

3In March of 2008, Ms. Sharras filed a complaint at the Ontario Human Rights Commission (“Commission”) alleging discrimination on the basis of race and colour in employment by the respondents Rouge Valley Health System (“Rouge Valley”), Sheri Bredewold, and one other individual. The principal allegation is that Ms. Sharras did not retain a position at Rouge Valley following a restructuring at least in part because of her race and colour.

4On June 16, 2008, an intake officer at the Commission wrote to Ms. Sharras posing various questions about her complaint. The letter began: “I am writing to advise you that I have not been able to reach you by telephone and I have not received your response to my voice messages left on April 23 and May 6, 2008”. It concluded as follows:

Please contact me immediately so that I may continue to process your complaint.

If I do not hear from you by June 23, 2008 I will assume that you are no longer interested in pursuing your complaint

I look forward to hearing from you.

[bold in original]

Ms. Sharras states that she telephoned the officer shortly after this and left a detailed message with the information requested. She states that she left several voice messages but received no response.

5On July 2, 2008, the intake officer wrote to Ms. Sharras as follows:

As per my letter dated June 16, 2008, I asked that you contact me by June 26, 2008. You left me a voice message on/about June 27, 2008 asking that I send you a copy of your complaint.

Please be advised that this complaint has been closed as withdrawn; therefore no further action will be taken.

6On July 6, 2008, Ms. Sharras wrote to the intake officer as follows:

I, Yvonne Sharras, responding to your letter I receive on Friday – dated July 2, 2008.

I’m very surprise of what you stated, because after your first letter I receive on the 18^th of June 08 I called you several times include the same day I receive your letter, leaving messages and no response. Anyway I want you to know that I would like my case to be heard so please give me a call to arranged a meeting with you as soon as possible.

7A statement, provided by the Director of the Commission’s Legal Services Branch, describes what happened next as follows:

On July 7, 2008, Ms. Sharras spoke with Commission staff and indicated that she wanted her file re-opened and wanted to proceed with her complaint. Commission staff then explained Bill 107 to her and indicated that it would be highly unlikely that the Commission would be able to investigate her complaint by the end of the year. Commission staff suggested that she file her complaint at the Tribunal. Ms. Sharras asked for the Tribunal’s contact information, which was provided. She was also advised that she could pursue a complaint with the Tribunal against the involved union if she believed the union had discriminated against her. Ms. Sharras agreed with this process. No further letter was sent to Ms. Sharras since her complaint had already been closed as withdrawn by letter dated July 2, 2008.

8On July 18, 2007, Ms. Sharras filed an Application on her own behalf under the new s. 34 of the Code, which had come into effect on June 30, 2008. The Application alleges discrimination on the basis of disability in the same restructuring, and names Rouge Valley, Ms. Bredewold, and the Canadian Union of Public Employees, Local 4365 (the “Union”) as respondents. Ms. Sharras subsequently obtained representation. The Application has not been amended.

THE TRIBUNAL’S JURISDICTION

9The respondents submit that this Application is barred as a result of s. 53(8) of the Code. Section 53, which came into effect on June 30, 2008, is contained in Part VI of the Code entitled “Transition Provisions”, and reads as follows:

53(1) This section applies to a complaint filed with the Commission under subsection 32 (1) of the old Part IV or initiated by the Commission under subsection 32 (2) of the old Part IV before the effective date.

(2) Subject to subsection (3) and despite the repeal of the old Part IV, during the six-month period that begins on the effective date, the Commission shall continue to deal with complaints referred to in subsection (1) in accordance with subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV and, for that purpose,

(a) the Commission has all the powers described in subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV; and

(b) the provisions referred to in clause (a) continue to apply with respect to the complaints, with necessary modifications.

(3) Subject to subsection (4), at any time during the six-month period referred to in subsection (2), the person who made a complaint that is continued under that subsection may, in accordance with the Tribunal rules, elect to abandon the complaint and make an application to the Tribunal with respect to the subject-matter of the complaint.

(4) The Tribunal shall make rules with respect to the practices and procedures that apply to an application under subsection (3) in order to ensure that the applications are dealt with in an expeditious manner.

(5) If, after the end of the six-month period referred to in subsection (2), the Commission has failed to deal with the merits of a complaint continued under that subsection and the complaint has not been withdrawn or settled, the complainant may make an application to the Tribunal with respect to the subject-matter of the complaint within a further six-month period after the end of the earlier six-month period.

(6) The new Part IV applies to an application made under subsections (3) and (5).

(7) Despite anything in the Freedom of Information and Protection of Privacy Act, at the request of a party to an application under subsection (3) or (5), the Commission may disclose to the party any information obtained by the Commission in the course of an investigation.

(8) No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

10The respondents submit, and the applicant agrees, that in the circumstances the complaint was “filed” with the Commission within the meaning of s. 53(8) before June 30, 2008. The applicant submits that despite the fact that this Application was filed on the s. 34 form, the Tribunal has jurisdiction to determine the Application as if it had been made under s. 53(3). Thus, there is no need to consider the Commission’s statement regarding its filing practices or the application of the Tribunal’s decision in Patterson v. Somebuddy’s Restaurant and Eatery, 2008 HRTO 160.

11I must determine whether the Tribunal has jurisdiction over the Application pursuant to s. 53(3) of the Code. For the Tribunal to have jurisdiction, there must have been a complaint filed at the Commission which is “continued” and the applicant must “elect to abandon the complaint and make an application to the Tribunal with respect to the subject-matter of the complaint”.

12The respondents argue that the June 2008 Commission complaint cannot be considered “continued” within the meaning of s. 53(8), since the Commission closed its file. They assert that the applicant’s proper course if she objects to its actions is through a judicial review or the Commission’s internal processes.

13In Schleifer v. Toronto (City), 2008 HRTO 249, the Tribunal considered the application of the transition provisions and the approach to determining whether a complaint is “continued” within the meaning of s. 53. At para. 12, the Tribunal stated as follows:

Under sections 53(1) to (3), the Tribunal only has jurisdiction to determine the applicant’s s. 53(3) Application if it was “continued” at the Commission after June 30, 2008, the “effective date”. The word “continued” must be given an interpretation that reflects the Legislature’s intention and purposes in enacting the transition provisions, “an orderly and rational changeover from one legal regime for the enforcement of Code rights to another”: Patterson v. Somebuddy’s Restaurant and Eatery, 2008 HRTO 160, 2008 HRTO 160. At the root of these provisions is the goal that outstanding complaints that have not been resolved will be addressed under the previous system, for six months, with the exception of those where the complainant decides to “opt out” and file a transition application under s. 53(3). Following the initial six-month period, complaints that remain unresolved may be the subject of an application under s. 53(5) for a further six months.

14At para. 15, the Tribunal addressed the issue of whether the fact that a file was left open was determinative of whether it was “continued” within the meaning of s. 53:

In my view, whether a complaint is “continued” within the meaning of s. 53, permitting an application to be made under s. 53(3), does not depend only on whether the Commission’s file remains open or has been closed. When the applicant has expressed a clear, informed intention to put an end to the matters at issue in the complaint and signed legally binding documents to that effect, which clearly express their meaning and consequences, it would not be consistent with the intention of the legislation to find that it is “continued”. The mere fact that the Commission has left a file open does not change the fact that the parties have agreed that the complaint is at an end through a settlement and release. The unequivocal and binding expression of the parties’ intention to resolve the complaint means that it is not “continued” within the meaning of s. 53(3).

15The applicant argues that the applicant’s complaint at the Commission is “continued” within the meaning of s. 53(3) notwithstanding the fact that it was closed by the Commission. The respondents submit that the Tribunal’s reasoning in Schleifer cannot apply to a file that was closed at the Commission. They argue that if the Commission has closed a file, the complaint cannot be “continued” within the meaning of s. 53(8).

16I find that, like Schleifer, this is a case in which the status of the Commission’s file is not determinative of whether the complaint is “continued” within the meaning of s. 53(3). There was no statutory basis upon which the Commission disposed of the complaint in July 2008, nor was it settled or dismissed. The file was closed as “withdrawn” but the applicant had expressed no intention to withdraw it. Given the absence of any statutory or other basis upon which the complaint was ended, I find that it was “continued” within the meaning of s. 53(3) and that the Tribunal has jurisdiction to hear the Application under s. 53(3).

17It is appropriate to process the Application under s. 53(3), although it was filed on an s. 34 form. The applicant followed the suggestion she was given by the Commission, and she clearly acted in good faith. The Application and subsequent materials include the necessary information: she has provided the Commission complaint, which is required by Rule 6.2 of the Tribunal’s Rules of Procedure for Applications under Section 53(3) of the Human Rights Code (the “section 53(3) Rules”). All the substantive information that would have been included in an s. 53(3) application was contained in the s. 34 Application. With one exception, discussed in the next paragraph, the manner in which the applicant proceeded has not caused any prejudice to the respondents.

RESPONDENTS AND SCOPE OF THE COMPLAINT

18In her Commission complaint, the applicant named an individual respondent whom she did not name in the s. 34 Application. She also did not deliver any subsequent materials to her or ask the Tribunal to name her as a respondent. Accordingly, this individual has had no notice of these proceedings or opportunity to participate in the December 19, 2008 hearing. In these circumstances it would not be fair or just to allow the s.53(3) Application to proceed against her.

19The Union was not named in the Commission complaint. Under Rule 6.3, the Tribunal “will not entertain preliminary requests to add grounds, expand the subject matter of the complaint or add parties to the Application”. The applicant does not ask to proceed against the Union. The Union is therefore not a respondent. The only respondents to the s. 53(3) application are Rouge Valley and Sheri Bredewold.

20The respondents also argued that the applicant should not be permitted to rely upon a theory of the case put forward by her representative at the hearing: that she was denied training that others received, that this constituted discrimination on the basis of race, and that she did not receive a position in the restructuring because she did not receive training. The respondents argue that this constitutes an expansion of the subject-matter of the complaint contrary to Rule 6.3. I disagree. The Tribunal jurisprudence is clear that a complaint should not be read technically or narrowly. I find that the subject-matter of the complaint is an allegation that the restructuring process in March 2007, in which the applicant did not retain a position, together with the background set out in the complaint, was discriminatory on the basis of race. This encompasses the applicant’s theory regarding training.

NEXT STEPS

21This Application shall be transferred to the transition stream and the Registrar–Transition will assign a transition file number.

22The respondents advised the Tribunal at the hearing that they do not wish to participate in mediation. The 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. In this case, in particular given the fact that the parties have attended a day of hearing, I am satisfied that the Application can be processed expeditiously without requiring such attendance. In the circumstances of this case, and having regard to the Tribunal’s section 53(3) Rules, the Tribunal will proceed to the next step in the process, which is to prepare for a case resolution conference.

23Therefore, the parties are directed as follows:

a. The respondents shall file a Response in Form B in accordance with Rule 7 of the section 53(3) Rules within 35 days of the date of this decision.

b. Within 30 days following the filing of the respondents’ Response, the applicant shall deliver to the respondents 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 addition, the applicant shall deliver to the respondents a copy of all arguably relevant documents in the applicant’s possession, except where privilege is claimed.

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

d. By the same date (within 45 days following the filing of the respondents’ Response, the respondents shall deliver to the applicant and file with the Tribunal an affidavit or signed statement setting out the process by which the March 2007 restructuring took place and the reason or reasons why the applicant did not obtain a position following the restructuring. The statement shall outline all factors that were taken into account in any decisions that were made. The affidavit or signed statement shall be made by a person having personal knowledge of the events, and this person shall attend at the case resolution conference to give oral evidence if required.

24The parties are directed to advise the Registrar-Transition within 20 days of receipt of this decision of their availability for a one-day case resolution conference during the weeks of April 6, 2009 and April 13, 2009.

25The 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.

ORDER

26The Application against Rouge Valley and Sheri Bredewold shall proceed under s. 53(3) in accordance with the directions in paragraph 23, above. I am seized of this matter.