Wilberforce v. Lennox and Addington Family and Children’s Services, 2009 HRTO 831

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Glenna Wilberforce

Applicant

-and-

Lennox and Addington Family and Children’s Services, the Board of Directors of Lennox and Addington Family and Children’s Services and Greg Moon

Respondents

INTERIM decision

Adjudicator: Brian Eyolfson

Date: June 12, 2009

Citation: 2009 HRTO 831

Indexed as: Wilberforce v. Lennox and Addington Family and Children’s Services

1The applicant filed an Application, dated November 6, 2008, under section 34 of Part IV 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, sex, sexual solicitation or advances, and reprisal. The Application indicated that a Complaint based on the same facts as the Application was previously filed with the Ontario Human Rights Commission (the “Commission”).

2In response, the respondents made a Request for Early Dismissal of the Application, referring to section 53(8) of the Code which provides:

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.

3In her Response opposing the Request for Early Dismissal, the applicant provided a copy of a letter dated September 9, 2008, from the Commission which stated, in part, as follows:

You submitted your complaint to the Commission in May 2008. Your complaint was not served to the respondent. In cases where the Commission has not served the complaint to the respondent(s), complainants are being offered the opportunity to withdraw/close the case at the Commission and file the complaint directly with the Human Rights Tribunal of Ontario. Because it would be considered a new case (as it was not served), this would also enable complainants to access legal advice from the Legal Support Centre.

On September 8, 2008, you chose to withdraw your complaint and file directly with the Tribunal. Accordingly, your file has been closed as withdrawn.

The applicant submitted that, for the purposes of section 53(8) of the Code, there is no prior Complaint filed with the Commission.

4The Tribunal invited the parties to provide further written submissions on the Tribunal’s decision in Patterson v. Somebuddy’s Restaurant and Eatery, 2008 HRTO 160. In response, the respondents requested that, in advance of either party providing further submissions, the Tribunal request that the Commission provide a statement of facts in respect of the applicant’s Complaint with the Commission.

5In an Interim Decision, 2009 HRTO 204, pursuant to Rule 1.7(p) of the Tribunal’s Rules of Procedure, the Tribunal directed the Commission to file and deliver to the parties a statement of facts in relation to the applicant’s Complaint file with the Commission, by March 17, 2009. Similar to Patterson, supra, the Tribunal directed that the statement of facts should include information about the filing of the Complaint with the Commission, communications between the applicant and the Commission, communications between the respondents and the Commission, and any other facts related to the processing of the Complaint by the Commission and its apparent withdrawal (subject to mediation privilege). The Tribunal also provided the parties with an opportunity to deliver and file submissions in response, by March 24, 2009.

6The Commission provided a statement of facts on March 17, 2009. The Commission stated, in part, that the applicant did not formally “file” a complaint with the Commission under the old Part IV of the Code and, therefore, it was the Commission’s view that section 53(8) of the Code would not apply in the circumstances.

7On March 20, 2009, the respondents provided a response submitting, inter alia, that the Commission’s statement of facts “is so woefully insufficient as to fail to respond to the Tribunal’s order” and that it was “more in the character of legal submissions.” The respondents requested that the Tribunal order the Commission to provide, without legal argument, further information within two weeks, and further extend the parties’ obligation to provide their written submissions for a further five business days after the date the Commission’s further information is received by the parties. The respondents also requested a full copy of the Commission’s file in respect of the Complaint filed by the Applicant (subject to mediation privilege).

8The applicant provided submissions in response to the Commission’s statement of facts on March 23, 2009. The applicant submitted that the respondents’ request for a further extension and that the Commission be ordered to provide additional information and a complete copy of its file was unwarranted, had the aura of a “fishing expedition”, and should be rejected.

9The Tribunal issued an Interim Decision, 2009 HRTO 517, declining to require the Commission to provide further particulars and/or production, at the time, and provided the respondents with an additional five days to provide submissions on the issue of whether the Application is barred by virtue of section 53(8) of the Code. The Tribunal indicated that, following the receipt of submissions, it may determine the issue or provide further procedural directions.

10The Tribunal has now received submissions from the respondents. In light of the information and submissions now before the Tribunal, I find that it is appropriate to hold an oral hearing to determine the issue of whether the Application is barred by virtue of section 53(8) of the Code. The Tribunal will hear evidence and submissions on this preliminary issue and may also hear submissions on any other preliminary or jurisdictional issues the parties raise. The Commission will be invited to participate in the hearing.

11Without expressing any view as to the applicant’s ability to do so, the applicant may wish to consider filing an application pursuant to section 53(5) of the Code prior to June 30, 2009. [see Sharras v. Rouge Valley Health System, 2008 HRTO 454.]

12In the circumstances, the Tribunal orders as follows:

1. Within two weeks of the date of this Interim Decision, the parties shall identify any other preliminary or jurisdictional issues they wish to raise, through a letter to the Registrar, copied to the other parties and the Commission.

2. The Registrar will schedule a one-day oral hearing in this matter and will provide notice to the Commission. The Registrar will also provide the Commission with a copy of this Interim Decision, the respondent’s Response to the Application and submissions dated May 4, 2009, and the applicant’s Response to a Request for an Order and submissions dated March 23, 2009.

3. The parties and the Commission shall identify any witnesses they wish to call and provide a brief summary of their expected evidence by letter to the Registrar, copied to the other parties and the Commission, at least two weeks prior to the date of the hearing.

4. The Tribunal may issue further directions about the manner in which the hearing will proceed following receipt of the additional materials identified above.

11I am not seized of this matter.