HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Desmond Hassell

Applicant

-and-

Parkdale United Church - Ottawa

Respondent

A N D B E T W E E N:

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: December 14, 2009

Citation: 2009 HRTO 2166

Indexed as: Hassell v. Parkdale United Church

BACKGROUND

1This Interim Decision relates to two Applications filed by the applicant 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.

2On November 25, 2009, the Tribunal issued an Interim Decision in this matter, 2009 HRTO 2016, dealing with the respondents’ request that, prior to mediation, the Tribunal adjudicate the outstanding jurisdictional issue identified as well as the respondents’ request for early dismissal of the Applications on the basis that another proceeding had appropriately dealt with the substance of the Applications within the meaning of section 45.1 of the Code.

3For the reasons set out in the Interim Decision, the Tribunal directed that mediation would proceed as scheduled, in advance of adjudication of the jurisdictional issues and the issue under section 45.1 of the Code, unless the respondents withdrew their consent to mediation, in which case, the date scheduled for mediation would be used for an oral hearing to determine the outstanding jurisdictional issues and the issue under section 45.1.

4By letter dated November 30, 2009, the respondents have withdrawn their consent to mediation. Accordingly, in accordance with the Interim Decision, the Tribunal directs that an oral hearing in this matter will be held on January 6, 2010, to hear the parties’ evidence (if any) and oral submissions with respect to the jurisdictional issues, namely whether one or both of the Applications fall outside of the Tribunal’s jurisdiction because of delay; and whether the subject-matter of the Applications is outside the jurisdiction of the Tribunal. At the January 6, 2010 hearing, the Tribunal will also hear the parties’ submissions regarding whether another proceeding has appropriately dealt with the subject-matter of the Application within the meaning of section 45.1 of the Code. The issues to be addressed by the parties at the hearing are further clarified below.

DELAY IN FILING THE APPLICATION(S)

5Section 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. It also provides that persons may apply to the Tribunal more than one year after the incident(s) to which the Application relates in certain circumstances:

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.

6The Application in File 2009-1494-I indicates that the date of the last event upon which the Application is based was September 13, 2006. On that date, the applicant alleges that he was forced to resign from his position with the respondent because of undisclosed allegations of sexual harassment by the applicant. The reason given for the approximately two-and-a-half year delay in filing the Application is that the applicant was trying to address his claim against the respondent through the church’s internal by-laws. The applicant contends that it was appropriate for him to wait until he had exhausted all available avenues under the by-laws before filing with the Tribunal.

7By letter dated November 28, 2008, the applicant was notified that a formal hearing committee established under the by-laws of the United Church of Canada had decided to deny the applicant’s request for a formal hearing regarding the events upon which his Applications are based. He then filed his Application in File 2009-01516-I, which indicates that the date of the last event upon which that Application is based is November 28, 2008, the date of the letter. However, it is not clear from the materials before the Tribunal whether an allegation upon which the Application is based occurred in November 2008.

8At the oral hearing on January 6, 2010, the Tribunal will hear evidence, if necessary, and the parties’ oral submissions regarding whether one or both of these Applications are outside of the Tribunal’s jurisdiction because of delay in filing the Applications. Among other things, the parties should come prepared to adduce evidence and make submissions regarding:

a. the date of the last event upon which each Application is based;

b. if there was delay in filing one or both of the Applications, whether the delay was filed in good faith and whether substantial prejudice would result to anyone affected by the delay if the application(s) were to proceed.

9The Tribunal has held that in order to establish that delay was incurred in good faith, the applicant must provide a reasonable explanation for the delay in filing the application: Lutz v. Toronto, 2009 HRTO 1137.

Subject-matter of the Applications

10The Applications allege that the respondents discriminated against the applicant on the basis of sex in respect of employment and contracts. The applicant alleges that he was forced to resign from his position on the basis of allegations that he had sexually harassed one or more other employees. It is not clear how the applicant is alleging the respondents violated his right to be free from discrimination on the basis of sex.

11The Tribunal’s power to hear and determine human rights applications is based on the Code, which, among other things, prohibits discrimination and harassment with respect to employment and contracts on certain prohibited grounds, including sex. The Tribunal does not have a general power to inquire into claims of unfairness, which are not covered by the Code.

12In order to resolve the threshold question of whether the subject-matter of the Applications relates to matters covered by the Code and is within the power of the Tribunal to decide, the Tribunal directs the applicant to come to the hearing prepared to make oral submissions regarding how the respondents’ actions constituted discrimination in respect of employment or contracts on the basis of his sex. The respondents should be prepared to make submissions in response.

13If one or both of the Applications are found to be outside of the Tribunal’s jurisdiction, either because of delay in the filing of the Application(s) or because one or both of the Applications do not raise matters that are within the Tribunal’s power to decide, the Application(s) will be dismissed.

Respondents’ Request for Early Dismissal pursuant to section 45.1 of the Code

14The respondents have made a Request for Early Dismissal of the Applications 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 Applications.

15Section 45.1 of the Code reads as follows:

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.

16The Tribunal has stated that section 45.1 should be considered in two parts: (a) where there was another “proceeding”, and (b) if so, whether it “appropriately dealt with” the substance of the Application. (See Campbell v. Toronto District School Board, 2008 HRTO 62).

17At the oral hearing in respect of this matter on January 6, 2010, the parties to the Applications should come prepared to adduce evidence, if necessary, and to make oral submissions with respect to whether another proceeding has appropriately dealt with the subject of the Applications and if the Tribunal should therefore dismiss one or both of the Applications pursuant to section 45.1 of the Code.

18I am not seized.