Zavarella v. Toronto Transit Commission, 2009 HRTO 80

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Luigi Zavarella Applicant

-and-

Toronto Transit Commission Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: January 23, 2009 Citation: 2009 HRTO 80 Indexed as: Zavarella v. Toronto Transit Commission

1This Interim Decision addresses a request by the applicant to expedite the hearing of this matter pursuant to Rule 21 of the Tribunal’s Rules of Procedure (“the Rules”). It also addresses the respondent’s position that the Application is outside the Tribunal’s jurisdiction pursuant to s.53(8) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”) because the applicant filed a complaint in 2005 with the Ontario Human Rights Commission (“Commission”) based upon the same fact situation.

2This Application, filed with the Tribunal pursuant to s. 34 of the Code on December 30, 2008, alleges discrimination in employment on the basis of disability. The applicant states that he was a member of a union, Amalgamated Transit Workers, Local 113 (“the union”), at the time of the alleged discrimination and provided the name and address of the union.

3The Application contains very few factual details, but from the boxes marked on the application form, it appears that the applicant alleges that he was dismissed from his employment because of a disability, with the last event taking place on March 31, 2004. The applicant explains he is applying more than one year from the last event because that he originally made a Complaint with the Commission.

REQUEST TO EXPEDITE PROCEEDINGS

4In support of his Request to Expedite, the applicant notes the time which has passed since the alleged incidents of discrimination, his inability to acquire similar employment and his age. He believes his future employment will be severely compromised if the Request is denied.

5The respondent opposes the Request. It submits the applicant has not identified any urgent circumstances that may affect the fair and just resolution of the application or any compelling reasons to expedite the Application.

6Rule 21.1 provides that an applicant may request “that the Tribunal deal with an Application on an expedited basis in circumstances which require an urgent resolution of the issues in dispute”. The Request to Expedite Proceedings must describe urgent circumstances that may affect the fair and just resolution of the merits of the Application and the harm that would result if the request is denied. In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at paragraph 9, the Tribunal held as follows:

For a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.

7Having reviewed the materials filed, and having regard to the Tribunal’s Rules and the decision in Weerawardane, supra, the Request to Expedite is denied. The applicant has not provided any explanation why the passage of time creates an urgency that warrants expedited proceedings. Further he has not provided any rationale behind his claim that a denial of his request to expedite would compromise his future employment. There is nothing in the substance of the Application that suggests particular urgency as compared with other human rights applications.

THE TRIBUNAL’S JURISDICTION

8Section 53(8) of the Code reads:

No application, other than an application under subsection (3) or (5) may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

9The respondent submitted a copy of the Commission complaint. The complaint alleges discrimination on the basis of disability in employment against the respondent and others and alleges that the applicant was dismissed from employment after missing work for medical reasons in 2005. Neither party provided information about whether the complaint was finally determined by the Commission, withdrawn or settled.

10On June 30, 2008, the Code was significantly amended. Individuals with Commission complaints that are “continued” as of June 30, 2008 may file an application with the Tribunal with respect to the subject-matter of their complaint pursuant to section 53 of the amended Code. These applications are Transition applications and are heard and determined in accordance with the Tribunal’s Rules of Procedure for Transitional Applications under Sections 53(3) and 53(5) of the Human Rights Code. Information about Transition applications is available on the Tribunal’s website at www.hrto.ca.

11This Application was filed using the Tribunal’s process for new applications, where no Commission complaint was ongoing on June 30, 2008, under section 34 of the amended Code. If the applicant wishes his Application to proceed as a section 34 matter, he must respond to respondent’s submissions and explain why, in his view, this Application is not the same or substantially the same as the previous Commission complaint and would not be barred by s.53(8).

12Therefore, the Tribunal orders:

a) The applicant’s request to expedite is denied;

b) The applicant has until February 5, 2009 to file with the Tribunal and deliver to the respondent submissions on whether the Tribunal has jurisdiction to hear this Application in light of s. 53(8) of the Code;

c) The respondent is not required to file submissions in response. After reviewing the applicant’s submissions, the Tribunal shall determine whether it requires submissions from the respondent on the jurisdictional issue, and if so, will set a timetable for the filing of submissions in response, and for the applicant’s reply.

d) The respondent is not required to file its Response to the Application at this time.

13I am not seized of this matter.