Allen v. Mississauga (City), 2009 HRTO 274

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michele Allen

Applicant

-and-

The Corporation of the City of Mississauga, John McDougall and Brian Walsh

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: March 11, 2009

Citation: 2009 HRTO 274

Indexed as: Allen v. Mississauga (City)

APPEARANCES BY

Michele Allen, Applicant ) Cecil Norman ) Representative

The Corporation of the City of Mississauga; ) Erin R. Kuzz, Brian Walsh; John McDougall and ) Katherine Ford and Louise Anne Riddell, Respondents ) Casey Picard ) ,Representatives )

1This is an Application filed on August 29^th 2008 pursuant to section 53(3) of the Human Rights Code, RSO 1990, c.H-19, as amended (the "Code").

2The applicant alleges that she was discriminated against by the respondents on the basis of sex and disability.

3The Respondent raised two related preliminary issues: a request to dismiss because the complaint underlying the Application is out of time, and alternatively, a request that one of the individual respondents be removed as a respondent and the allegations made against him dismissed on the basis that he passed away in October 2008. Finally, the respondents claim that there are no facts alleged which relate to the claim that the respondents have discriminated against her on the basis of disability that, if accepted, would establish a violation of the Code. The parties were advised by the Tribunal to be prepared to deal with these preliminary issues as well as the merits of the Application at the Case Resolution Conference scheduled to take place on March 5 and 6, 2009.

4On March 4, Ms. Allen requested an adjournment of the Case Resolution Conference on the basis that she had taken ill. A doctor's note was provided. The respondents did not object to the adjournment of the evidence but requested that the representatives attend and make submissions on the preliminary issues. The respondents also requested an opportunity to make submissions on conditions to be attached to the adjournment.

5At the Case Resolution Conference I heard submissions from both parties on the issues outlined above. At the conclusion of submissions the Case Resolution Conference was adjourned for 30 minutes. When I reconvened the Applicant's representative was not present. Counsel for the respondents indicated that she had one further submission to make in respect of a question I had asked earlier in the morning. I indicated that I would hear from her briefly when the applicant's representative returned. I waited approximately 25 minutes and then the Case Resolution Conference proceeded in the absence of the applicant's representative who arrived during the course of counsel's submission. In the result the respondents' submission did not affect my determination in any respect.

6At the Case Resolution Conference the Applicant consented to the dismissal of the Application as against Mr. Morden, who passed away in October 2008. The style of cause has been amended accordingly.

7At the Case Resolution Conference I made the following oral ruling:

1. The respondents' request for an early dismissal of the entire Application because it is out of time is denied. While the respondents are quite right that many of the allegations contained in the complaint occurred years prior to the complaint, it is possible to characterize them as alternatively a series of events which constitute a pattern of discrimination on the basis of sex; or as the constituent elements of the poisoned work environment Ms. Allen was seeking to avoid when she requested that she not be moved from Station 121 to City Hall in August 2006.

2. The allegation at the heart of this case or arguably the culminating incident was the allegation that the respondents' failure to accede to Ms. Allen's request to not be moved to City Hall was discriminatory in that it would, in her view, result in her exposure to a poisoned work environment created in large part by respondent Walsh.

3. Assuming without deciding that the one year time limit in the new Code applies, the Application is on the face of it out of time in that it was filed more than 12 months after the August 2006 request to not be moved, on October 22, 2007. However I am satisfied based on the materials provided that nothwithstanding that the applicant was aware of the fact that she could also file a human rights complaint with the Ontario Human Rights Commission while pursuing the internal remedies available to her, she was in fact engaged in a good faith attempt to resolve the issues internally for much of the intervening 14 to 15 months.

4. On this timeliness point the respondents referred me to Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, for the proposition that the exhaustion of internal remedies does not in effect, buy an applicant more time to file an application. I take a different view of what that case stands for, but also point out that the delay in that case from the final or culminating incident to the filing of the Application was almost 5 years. In this case the delay is a matter of months with the bulk of that as I said, occurring while Ms. Allen sought to have her issues addressed in the internal processes the City afforded her.

5. The prejudice to the respondents is confined largely to the passing of respondent Morden. This will impact the ability of the remaining respondents to respond to some of the allegations; however I am not persuaded that the prejudice to the respondents by the passing of Mr. Morden is sufficient to justify the dismissal of the entire Application. Such prejudice as does exist can be dealt with in the course of the hearing of the merits.

6. In respect of the claim by the respondents that there are no facts plead in the complaint in respect of the claim that Ms. Allen was subject to discrimination on the basis of disability, that would if believed, establish a violation of the Code. I agree. The complaint contains no facts in respect of the claim that the respondents have discriminated against Ms. Allen on the basis of disability. There are no facts plead in the Additional Statement of Facts and Remedies filed by Ms. Allen in early January 2009. It is too late at this stage to suggest that there will be evidence of facts at the Case Resolution Conference. Accordingly there is nothing in this respect for the respondents to respond to in this Application.

8After delivering the above rulings the respondents requested Orders in respect of the adjournment of the merits of the Application. I engaged the parties in a case management discussion and made the following oral case management directions:

Ms. Allen will deliver and file a will say on or before April 6, 2009. The will say will record what Ms. Allen is expected to say in respect of the allegations made in the complaint. The normal rules respecting expansion or amendment of the complaint apply. In the event that there are Code related issues that would prevent Ms. Allen meeting that timeline, they shall be raised within 10 days of today by letter to the Respondent and the Tribunal.

With the exception of the will say of Ms. Allen, except where the materials the parties could not have been reasonably obtained prior to today, the parties are precluded from delivering and filing any further materials in respect of this Application.

The parties agreed that the Case Resolution Conference will resume again in September 2009.

The Tribunal will provide Notice of the actual dates and location of the Case Resolution Conference in due course.

9I am seized of this Application.