Handorf v. Babcock and Wilcox Canada, 2009 HRTO 339

Human Rights Tribunal of Ontario

B E T W E E N:

Richard Handorf Applicant

-and-

Babcock and Wilcox Canada Ltd. and United Steelworkers Local 2859 Respondents

INTERIM DECISION

Adjudicator: David A. Wright Date: March 20, 2009 Citation: 2009 HRTO 339 Indexed as: Handorf v. Babcock and Wilcox Canada

Reasons for Decision

1The applicant filed an Application on November 6, 2008 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment on the basis of disability.

2In their Responses, both respondents requested dismissal: (i) under s. 34 of the Code, on the basis that the Application was filed beyond the one-year time limit in the Code; and (ii) under s. 45.1 of the Code, on the basis that another proceeding has appropriately dealt with the substance of the Application. The respondents allege that the events occurred more than a year ago and that various arbitration proceedings and a duty of fair representation application at the Ontario Labour Relations Board (OLRB) have appropriately dealt with the substance of the Application within the meaning of the Code.

3The parties all agreed to mediation. Accordingly, Tribunal mediation was originally scheduled for March 5 and was subsequently rescheduled for April 2, 2009.

4The respondent Babcock and Wilcox has filed a Request for Order asking that the Tribunal hear its requests for dismissal under s. 34 and 45.1. In various pieces of correspondence, the respondents have asked that these requests be heard before mediation. The applicant objects on the basis that the parties have agreed to mediation, and also sets out his opposition to the substance of the requests.

5The Tribunal typically offers mediation assistance under Rule 15 at the outset of a proceeding before any hearing is held. Mediation, however, requires the consent of all parties. It is clear that the respondents do not consent to mediation at the present time.

6Under Rule 1.7(g), the Tribunal may determine and direct the order in which issues in a proceeding, including those considered by a party to be preliminary, will be determined. A party is not entitled as a matter of right to have an issue heard before other issues merely because it considers it preliminary, nor to have Tribunal mediation scheduled at a certain point in a proceeding.

7In the circumstances of this case, given the nature of the s. 45 and 45.1 issues raised by the respondents and their request to deal with them at this time, it would be fair, just, and expeditious to determine them as preliminary matters. It is not necessary to determine now whether the Tribunal will offer mediation assistance later in the process if the respondents' arguments are unsuccessful.

8Accordingly, the Tribunal will hold a hearing on April 2, 2009 (the date previously scheduled for mediation) to deal with the following issues:

(i) Has the application been made within one year of the incident to which it relates? If not, should the Tribunal accept it on the basis that the delay was incurred in good faith and no substantial prejudice will result to any person affected by it as permitted by s. 34 of the Code?

(ii) Should the Application be dismissed under s. 45.1 of the Code, in whole or in part, on the basis that prior arbitration and OLRB proceedings have appropriately dealt with its substance?

9The parties should be prepared to make oral argument on the above questions at the hearing. Should any party wish to rely upon any document as evidence that is not included in the materials previously sent to the Tribunal, it shall deliver it to the other parties and file it with the Tribunal by March 31, 2009. Should any party intend to call any witnesses regarding these issues, it shall deliver to the other parties and file with the Tribunal a letter setting out the name of the witness and a brief summary of the witness's intended evidence by March 31, 2009.

10The parties may wish to consider to the following cases (among any others) when preparing their oral submissions: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Quimado v. S.A. Armstrong, 2009 HRTO 110; Klein v. Toronto Zionist Council, 2009 HRTO 241; Dwyer v. Chrysler Canada, 2009 HRTO 247 Campbell v. Toronto District School Board, 2008 HRTO 62, Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, and Jarvis v. Sheet Metal Workers' International Association, 2008 HRTO 121. All are available on the website, www.canlii.org.

11I am not seized of this Application.