Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mahes Weerawardane

Applicant

-and-

2152458 Ontario Ltd. (Howard Johnson Inn and Suites) and

Jianing (Warren) Huang

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: August 15, 2008

Citation: 2008 HRTO 53

Indexed as: Weerawardane v. 2152458 Ontario Ltd.

Human Rights Tribunal of Ontario

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Toronto ON M7A 2A3

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WRITTEN SUBMISSIONS BY

Mahes Weerawardane, Applicant ) On His Own Behalf

2152458 Ontario Ltd. (Howard Johnson Inn and ) Keith P. Burkhardt,

Suites) and Jianing (Warren) Huang, Respondents ) Counsel )

INTRODUCTION

1This Interim Decision addresses a request by the applicant to expedite the hearing of this matter pursuant to Rule 21 of the Tribunal’s Rules of Procedure for applications under Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant filed an application with the Tribunal pursuant to s. 34 of the Code on July 21, 2008, alleging discrimination in employment on the basis of race and ethnic origin. He states that he was dismissed from his employment as the accountant for the corporate respondent effective June 6, 2008, with one month of notice, for a discriminatory reason. Mr. Weerawardane’s application alleges that he started working at Howard Johnson Inn & Suites, then owned by a different company, on October 18, 2007.

3In support of the request to expedite, the applicant cites the requirement that he pay his mortgage, and states that he and his family will get into debts from which they may not be able to recover, and his financial situation will be “devastating”. The respondents oppose the request to expedite. They state that the application does not allege a continuing violation of the Code nor allege irreparable harm if the matter is not processed on an expedited basis. Accordingly, they argue that there are no urgent circumstances which would affect the fair and just resolution of the matter if it proceeds through the normal process.

EXPEDITED PROCEEDINGS

The Rules

4The Rules provide for applications to be dealt with in an expedited manner in urgent circumstances. Rule 21.1 provides that an applicant may request “that the Tribunal deal with an Application on an expedited basis in circumstances which require an urgent resolution of the issues in dispute”. Rule 21.2 and Form 14 require an applicant seeking an expedited application to identify urgent circumstances that may affect the fair and just resolution of the merits of the application and the harm that may result if the request is denied. The Rules do not provide for any specific changes to the Tribunal’s process if a request to expedite is granted.

What is an Expedited Proceeding?

5The Tribunal is committed to the fair, just and expeditious resolution of the merits of human rights applications, and its process is designed for timely resolution of all such disputes. A respondent must file a complete response within 35 days after a copy of the application was delivered to the respondent (Rule 8), and a reply may be filed within 14 days of when the response was sent to the applicant (Rule 9). With the agreement of the parties and the Tribunal, mediation will be scheduled shortly afterwards. If no mediation takes place or following an unsuccessful mediation, the Tribunal will send a confirmation of hearing to the parties, which triggers an obligation to disclose all arguably relevant documents within 21 days (Rule 16.1). A hearing will follow. The Tribunal expects most hearings to be completed within one year of an application being filed.

6Since Rule 21 does not provide for any specific changes to the Tribunal’s process if a request to expedite is granted, the Tribunal will determine on a case-by-case basis what changes are necessary to its processes in a particular expedited proceeding. Changes may include abridgement of response, reply, and disclosure timelines, setting early hearing dates, and, where the parties consent to mediate, scheduling rapid mediation dates. The Tribunal may also exercise its powers under the Code and Rule 1.7 to direct the hearing process to ensure a particularly expeditious decision. The Tribunal reviews requests to expedite and, in patently urgent circumstances, may abridge the times for filing both the Form 15 response to the request to expedite and the Form 2 response to the application and schedule hearing and/or mediation dates before delivering the application and/or receiving the response to the request to expedite: see Bobbitt v. Metroland, 2008 HRTO 46.

SHOULD THIS APPLICATION BE EXPEDITED?

7The Tribunal must determine whether the circumstances of this case require an urgent resolution of the dispute. The applicant has been dismissed from his employment of seven and a half months, and he asserts that this will have serious effects on his family’s financial situation. Termination of employment has serious implications for an employee in most circumstances. Dismissal is the most serious consequence that can occur in an employment relationship and the effects on the employee, his or her family and finances are usually significant, as alleged here.

8Balanced against the effects upon the applicant, however, are the consequences of granting a request to expedite. Tightened timelines and exceptionally quick hearing dates may lead to inconvenience and possibly costs for other parties to the application. Moreover, an expedited application may be given priority for Tribunal resources over other matters. The Tribunal must consider these interests as well.

9For a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process. The financial consequences for a dismissed employee may constitute such a justification in some circumstances, particularly if there is reason to believe that these will lead to other significant consequences which may not be easily remedied. However, I find that this has not been demonstrated here. The applicant does not seek reinstatement, only monetary compensation. Accordingly, there is no issue of a possible return to the workplace in a timely manner if the request is granted. Mr. Weerawardane has not advised whether he is eligible for or receiving Employment Insurance, whether his family has other sources of income, or a particular reason that he anticipates difficulty in finding other work to mitigate any damages. He was a relatively short-term employee, who was on the job market last fall when he obtained this position at the hotel. I find that there are no particular indications of urgency in this case as compared with other dismissal cases.

10Therefore, the request to expedite is denied. I note that the applicant has agreed to attempt mediation. If the respondent also agrees to mediate, the Tribunal will schedule a mediation on the earliest possible mutually agreeable date, and the respondent may contact the Registrar’s office in this regard.

11The requirement for the respondents to complete and deliver the Response to Application (Form 2) to the applicant and file it with the Tribunal by August 29, 2008, remains in effect. I am not seized of this matter.