Tyrrell v. Intercall Canada Inc., 2009 HRTO 228

Human Rights Tribunal of Ontario

Between:

Colm Tyrrell Applicant

-and-

Intercall Canada Inc., Jason Foss and Jennifer Bellward Respondents

Interim Decision

Adjudicator: Kaye Joachim Date: March 3, 2009 Citation: 2009 HRTO 228 Indexed as: Tyrrell v. Intercall Canada

1This is an Application filed September 5, 2008 under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Interim Decision addresses a disputed request to alter the date of the Case Resolution Conference, amend the Application and to add a party. The Case Resolution Conference is scheduled for May 13 and 14, 2009.

2The respondents assert that the applicant's submissions were not served in a timely manner and should not be considered. The applicant's submissions on the preliminary matter were to be delivered to the respondents and filed with the Tribunal on February 13, 2009. The Statement of Delivery signed by the applicant indicates that the submissions were sent by regular mail on February 11, 2009. The Tribunal's Rules of Procedure for Transitional Applications provide that delivery of a document sent by mail is deemed to have been received by the 5th day after the postmark date (Rule 1.18), which would be February 16, 2009. The Rules also provide that filing with the Tribunal is deemed to take place on date received by the Tribunal (Rule 1.15). The Tribunal received the applicant's submissions on February 18, 2009. Therefore the applicant is technically in breach of the Rules, both with respect to delivery to the respondents and filing with Tribunal. However, it appears that the applicant attempted to meet the deadline of February 13, 2009 by mailing the material on February 11, 2009. It would be unduly technical to refuse to consider the applicant's submissions in these circumstances. Accordingly, I have considered the applicant's submissions.

3The complaint which underlies the current Application was filed with the Ontario Human Rights Commission ("Commission") on June 13, 2007. In this complaint the applicant alleged that he was being discriminated against because of his disability and ethnic origin and that he had been threatened with dismissal.

4The applicant asserts that he wrote to the Commission on September 27, 2007 seeking to amend his complaint to include an allegation of reprisal, because after filing the complaint (and/or a previous complaint) his employment had been terminated on August 8, 2007. The applicant asserts that when he wrote to the Commission to seek their confirmation of receipt of his requested amendment, they advised him that they had experienced some "filing challenges" at their office and could not locate his request for an amendment. The Commission did not amend the complaint to add the reprisal allegation. When the applicant abandoned his complaint and filed the current section 53(3) Application, he included the request to amend and the request to add personal respondents, Karagh Marakovski, Shannon Gardner and Alina Terlep for their involvement in the termination.

5The respondents object to the inclusion of the reprisal allegation and the addition of the personal respondents in the current Application. For the purpose of this preliminary request, I am prepared to assume that the applicant wrote to the Commission in September 2007 seeking to add a reprisal allegation to his complaint relating to the dismissal of his employment in August 2007. However, the Commission did not respond and did not amend the complaint.

6The transitional provisions of the Code are intended to deal with the subject matter of complaints filed with the Commission prior to June 30, 2008. The applicant's allegations of reprisal in August 2007 did not form part of the subject matter of the complaint which was abandoned or the subject of the current Application because the Commission had not amended the complaint to add those allegations.

7In my view, the legislative intention as set out in the transition provisions is that section 53(3) applications should be dealt with in a highly expeditious manner. To that end, the Tribunal developed Rules to foster a fair, just and highly expeditious process. In particular Rule 6.3 states:

Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission and the Tribunal will not entertain preliminary requests to add grounds, expand the subject matter of the complaint or add parties to the Application.

8In my view, it would detract from the expeditious nature of the proceeding to permit the applicant to add the requested persons and expand the current Application to include any post June 2007 allegations of reprisal. The applicant's request to add parties and expand the scope of the Application is denied.

9On February 5, 2009 the respondents sought an adjournment of the hearing scheduled for May 13 and 14, 2009 on the basis that one of the personal respondents, who is not a resident of Ontario, was unable to travel to attend those days. The applicant opposed any further delay to the hearing. The respondents have indicated that they are available on May 6 and 7, 2009. The Tribunal advised the respondents to seek the applicant's consent to the earlier dates. The applicant has refused but has not submitted any reason for objecting. None of the dates for filing hearing materials would be affected by moving the hearing one week earlier.

10In the circumstances, the applicant shall advise the Tribunal within 10 days of the date of this Interim Decision what prejudice he will suffer from moving the hearing to May 6 and 7, 2009. If the Tribunal is satisfied that no prejudice to the applicant will result, the hearing dates will be adjourned to May 6 and 7, 2009. The Tribunal will issue further directions as required.