Hassell v. Parkdale United Church, 2009 HRTO 2016

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Desmond Hassell Applicant

-and-

Parkdale United Church—Ottawa Respondent

AND BETWEEN:

Desmond Hassell Applicant

-and-

United Church of Canada Montreal & Ottawa Conference and Ottawa Presbytery of the United Church of Canada Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price Date: November 25, 2009 Citation: 2009 HRTO 2016 Indexed as: Hassell v. Parkdale United Church

1This Interim Decision relates to two Applications filed on February 25, 2009 and February 27, 2009, respectively, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The applicant alleges that the respondents discriminated against him on the basis of sex in respect of employment and contracts.

2Since there is significant overlap in the alleged facts giving rise to the Applications and since all of the parties consented to mediation in respect of the Applications, the Tribunal scheduled the Applications for joint mediation on January 6, 2010. Although the Tribunal scheduled joint mediation in respect of the Applications, it has not yet made any determination about whether the Applications should be consolidated or otherwise dealt with together at the hearing stage.

3All of the respondents to the Applications are represented by the same legal counsel. The respondents have made a Request for Early Dismissal of the Application pursuant to section 45.1 of the Code on the basis that another proceeding has in whole or in part appropriately dealt with the substance of the Application. Specifically, the respondents allege that a formal hearing committee established under the by-laws of the United Church of Canada appropriately dealt with the substance of the Application.

4Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an Application within its jurisdiction without affording the parties a chance to make oral submissions. The employer’s Request pursuant to section 45.1 of the Code does not go to the Tribunal’s jurisdiction over the Applications. Accordingly, the Tribunal may not grant the respondents’ Request under section 45.1 without affording the parties a chance to make oral submissions.

5In addition to the issue under section 45.1 of the Code, there are outstanding jurisdictional issues in the Applications. First, on their face, the Applications raise a question whether the applicant is prevented from applying to the Tribunal because of delay in filing the Application, pursuant to section 34(1) of the Code which states:

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.

6In addition, there is a question whether the subject-matter of the Applications falls within the jurisdiction of the Tribunal. Specifically, it is not clear that the applicant alleges that he was discriminated against or harassed on the basis of his sex. Rather, the applicant appears to allege that his employment or contract with the respondent(s) was terminated on the basis of allegations of sexual harassment by the applicant.

7The Notice of Mediation sent out in this matter dated September 22, 2009 stated:

The Tribunal acknowledges the respondents’ Request for Early Dismissal. The Tribunal also notes that there are outstanding issues regarding whether the subject-matter of the Applications is within the jurisdiction of the Tribunal; and whether the Applications are outside the Tribunal’s jurisdiction because they may have been filed more than one year after the last incident of discrimination and the Tribunal has not yet determined that it is satisfied that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay (s. 34(1) and (2)). Given the parties’ agreement to mediate, the mediation will proceed first and the Request and any other outstanding issues will be considered if the parties are unable to resolve the Applications through mediation.

8The Tribunal is in receipt of a letter from counsel for the respondents dated November 4, 2009, in which the respondents ask that the Tribunal adjudicate its Request for Early Dismissal as well as the jurisdictional issues in these Applications prior to mediation. The respondents indicate, through their counsel, that if the Tribunal is not prepared to deal with the request for early dismissal and the jurisdictional issues prior to mediation, they respondents may withdraw their consent to mediation.

9Where all of the parties agree to participate in mediation, the Tribunal’s general practice is to schedule the mediation, prior to adjudicating issues in the file, particularly where an oral hearing will be required to adjudicate the issues in the file. In this case, the Tribunal may not dispose of the Application pursuant to the respondents’ Request for Early Dismissal without affording the parties an opportunity to make oral submissions. In addition, the outstanding jurisdictional issues relating to apparent delay in filing the Applications and whether the subject-matter of the Applications falls under the Code are sufficiently complex that an oral hearing is warranted to determine these preliminary issues related to the Tribunals’ jurisdiction over the Applications.

10Mediation at the Tribunal is a voluntary process. If the respondents no longer wish to participate in mediation in respect of these matters, they are fully entitled to withdraw their agreement to participate in mediation, in which case, the mediation scheduled for January 6, 2010 will be cancelled and a one-day hearing to determine the jurisdictional issues and the respondent’s Request for Early Dismissal of the Application under section 45.1 will be scheduled instead, on January 6, 2010 in Ottawa, Ontario.

11The respondents are hereby directed to indicate to the Tribunal within seven (7) days of the date of this Interim Decision whether or not they wish to participate in mediation in respect of these Applications. If they wish to participate in mediation, the mediation will proceed as scheduled on January 6, 2010. If they do not, the Tribunal will confirm January 6, 2010 as the date of hearing to determine the above-noted issues, and may provide further direction to the parties regarding the issues to be determined at the hearing and what, if anything, is to be exchanged and filed in advance of such hearing.

12I am not seized of this matter.