Ross v. Canadian Corps of Commissionaires, 2009 HRTO 76

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ruby Ross

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Canadian Corps of Commissionaires

Respondent

INTERIM DECISION

Adjudicator: Judith Keene

Date: January 22, 2009

Citation: 2009 HRTO 76

Indexed as: Ross v. Canadian Corps of Commissionaires

This Interim Decision addresses the respondent’s request to strike portions of the Commission’s hearing brief, and the respondent’s request for adjournment.

1The complainant alleges that the respondent discriminated against her contrary to ss. 5 and 8 of the Human Rights Code, R.S.O. 1990, ch. H.19 as amended (the “Code”) in the course of her employment, including forbidding her to wear her hair in a traditional Aboriginal manner. The grounds of alleged discrimination are ancestry, ethnic origin, creed and race. The Commission referred the complaint to the Tribunal on February 14, 2008. The Commission declined to refer the complaint against certain individuals and that portion of the complaint alleging reprisal.

Request to strike pleadings

2The respondent seeks an order striking paragraphs 16 and 26 through 32 of the Commission’s hearing brief. The test for whether a fact is properly included in a party’s hearing brief is whether the fact alleged is potentially relevant to the matters at issue at the hearing.

3Paragraph 16 of the Commission’s Brief refers to a transfer which was allegedly an act of reprisal for making a human rights complaint in December 2006, and a union grievance in May 2006. The respondent submits that the Tribunal has no jurisdiction to deal with the part of paragraph 16 that sets out the assertion about the union grievance. The Commission replies that the Tribunal does have jurisdiction, and points to section 8 of the Code, which deals with reprisals.

4It will not be necessary to comment on this jurisdictional issue, as I find that none of the allegations set out in paragraph 16 are relevant to the matter referred by the Commission to this Tribunal. The Commission specifically declined to refer allegations of reprisal. For this reason, paragraph 16 will be struck.

5Paragraphs 26 through 28, 30 and 31 of the Commission’s brief deal with an alleged failure to accommodate disability. The respondent objects to the inclusion of these paragraphs and paragraphs 29 and 32 as an improper expansion of the complaint before the Tribunal, and states that the retention of the paragraphs would add greatly to the length of the hearing and cause prejudice to the respondent. The Commission replies that the events that are the subject of the allegations are part of the continuum of events in the complaint, and that the respondent could not be prejudiced, having been informed of these allegations in a mediation in April, 2008. The Commission also notes that the allegations could be made the subject of another complaint and still be within the new one-year time limit.

6The complainant in this matter may have (or may yet) file an Application in respect of discrimination on the ground of disability. The Commission-referred complaint which is the subject of this decision is a complaint which cited as grounds of discrimination only ancestry, ethnic origin, creed and race. I agree that paragraphs 26 through 28, 30 and 31 are not potentially relevant to facts or issues in this case and will be struck.

7Paragraph 29 describes the manner in which the complainant was relieved of her duties at Seneca College. This paragraph contains information that is potentially relevant to facts or issues in this case.

8Paragraph 32 alleges an action on the part of the employer that significantly reduced the complainant’s hours and thus detrimentally affected her income. This action occurred not long after the events that are the subject of this complaint, and thus is potentially relevant to facts or issues in this case.

Request for adjournment

9In my previous Interim Decision in this matter, I ordered that, if the Commission intends to present evidence of the complainant’s ancestral connection to any specific Aboriginal community or communities, it is required to identify the communities in its Hearing Brief, to be filed on or before January 23, 2009. The respondent requests an adjournment, pointing out that, even if the Commission were able to file its hearing brief on that date, the operation of the Rules in regard to rights of response and reply conflict with the previously-set hearing dates. The respondent is correct in this regard.

10Neither the Commission nor counsel for the complainant has responded to the request for adjournment, although they may be planning to do so; the request was served only two days ago, on January 20.

11In order to expedite the process. I have asked the Registrar to set up a conference call in which all parties may speak to the issue of an adjournment. If an adjournment is granted, the conference call can also canvass new dates for the hearing.

ORDER

12For all of the foregoing reasons, the Tribunal makes the following Order:

a) Paragraphs 16, 26 through 28, 30 and 31 of the Commission’s hearing brief are struck.

b) The Commission shall serve and file a hearing brief that complies with this order, and the Tribunal’s previous order dated the 12th day of January, 2009, by no later than January 27, 2009.

13I am not seized of this matter.