Donna Van Gent v. Steed & Evans Holding Inc. & Lafarge Canada o/a Nelson Aggregates and George Stephen Drew, 2009 HRTO 1632

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Van Gent

Applicant

-and-

Steed & Evans Holding Inc. & Lafarge Canada o/a Nelson Aggregates and George Stephen Drew

Respondents

interim DECISION

Adjudicator: Judith Hinchman

Date: October 8, 2009

Citation: 2009 HRTO 1632

Indexed as: Van Gent v. Steed & Evans Holding Inc.

WRITTEN SUBMISSIONS BY

) Donna Van Gent, Applicant ) Self-represented ) ) Steed & Evans Holding Inc. & Lafarge Canada ) o/a Nelson Aggregates and George Stephen Drew, ) Robert Statton, Respondents ) Counsel

1The applicant filed a complaint dated February 20, 2006 (the “Complaint”) with the Ontario Human Rights Commission alleging a breach of the Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”) by the respondents. The applicant abandoned the Complaint and filed this Application (the “Application”) with the Human Rights Tribunal of Ontario (the “Tribunal”) pursuant to s. 53(5) of Part VI of the Code. The applicant alleges discrimination in relation to employment on the basis of sex.

2The respondents request that the Application be dismissed for lack of jurisdiction on the basis of delay and that there was no employment or contractual relationship between the respondents and the applicant at the time of the alleged incident or at any time.

3The Tribunal requested submissions from the parties on the jurisdictional issue.

Decision

4Under Rule 4.2 of its Rules of Procedure for Section 53(3) and 53(5) Applications, the Tribunal may dismiss part or all of an application that is outside the Tribunal’s jurisdiction.

5The Tribunal’s jurisdiction is based on the Code, which prohibits discrimination in employment, goods, services and facilities, accomodation, contracts and membership in a vocational association on the basis of certain protected grounds listed in the Code.

The Relationship between the Parties

6At the time of the alleged incident, the applicant was the owner/operator of Pebbles Transport and under contract with Franceschini Bros. Aggregates Ltd. (“Franceschini Bros.”) to transport aggragate materials. Beginning in 1996, the applicant picked up materials from the Nelson Quarry. The Nelson Quarry was operated by the corporate respondent. The personal respondent, George Stephen Drew was the quarry Supervisor.

7The applicant alleges that on June 7, 2004, an employee of Franceschini Bros. called her and told her that she could no longer enter Nelson Quarry to pick up material. On June 8, after going to the quarry to inquire about this decision, the applicant met with the personal respondent. She alleges that at that time he made remarks that were sexually discriminating. And she submits that as the only “women owner” who operated out of that quarry, she was treated differently than a male who would have been given notice or a warning before being barred from the quarry.

8The respondents submit that there was no employment or contractual relationship between the applicant and either the corporate respondent or the personal respondent and thus any incident is not a Code-related matter. The respondents submit that the corporate respondent did not have employees engaged in the trucking of aggregates from its quarry. And they further submit that the applicant was under exclusive contract to provide haulage services for Franceshini Bros. and never had any form of contract with the respondents.

9The applicant has not alleged any facts to dispute the respondents’ characterization of these relationships. In her September 2, 2009 submissions on jurisdiction, the applicant in fact states that at the time, she “was under contract with Franceschini Bros. Inc. and worked exclusively for them.” They are not named in the Application and no relationship between Franceschini Bros. and the respondents is alleged.

10It is not clear, however, whether Franceschini Bros. had a contractual relationship with the respondents and thus, despite the respondents’ assertion, whether the applicant may have been a subcontrator and so had a contractual relationship with the respondents.

11The Tribunal therefore directs the parties to each provide their submissions on the following issues and according to the timetable outlined at the end of this Interim Decision:

a. At the time of the alleged incident, was there a contractual relationship between Franceschini Bros. and the corporate respondent?

b. If so, was the applicant a subcontractor to the corporate respondent?

c. Should the Application be amended to identify the social area as contract?

d. What if any prejudice would the parties face from such an amendment?

Delay

12The respondents also ask that the Application be dismissed because of delay. They argue and it is not disputed that the applicant filed her Complaint on February 20, 2006, one year and seven months after the alleged incident on June 7, 2004.

13The applicant submits that in 2004, she phoned “Human Rights” about her case but then became too ill to deal with the incident at that time. The applicant has not provided any additional information regarding this explanation.

14The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) to which the application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the Application were to proceed:

34 (1) 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.

(2) 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.

15It is not disputed that the original complaint upon which the Application is based was brought more than one year after the last discriminatory incident alleged. The parties are directed to file submissions on whether or not the Tribunal should exercise its discretion to accept the Application, pursuant to section 34(2), according to the timetable below. Previous decisions of the Tribunal have considered the meaning of “good faith” and “substantial prejudice” in the context of section 34(2), see, for example, Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424. The parties may wish to review the Tribunal’s caselaw prior to providing their submissions on this issue.

ORDER

16The parties are ordered to file submissions regarding clarification of the relationship between the parties, as outlined in paragraph 11, and whether or not the delay in filing the Complaint was incurred in good faith and if so would result in substantial prejudice to any person, according to the following timetable:

a. The parties shall each file and serve their submissions by October 26, 2009.

b. The parties shall each file any reply submissions by November 9, 2009.

17If this matter is not within the jurisdiction of the Tribunal, it may be decided on the basis of the written submissions. If the Tribunal determines that an oral hearing is required, it will notify the parties.