Norman Traversy v. The Corporation of the City of Mississauga, Hazel McCallion, John McDougall, Kevin Duffy, Brian Walsh, Louise Ann Riddell, Roger Clement, and Janice Baker, 2009 HRTO 990

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Norman Traversy

Applicant

-and-

The Corporation of the City of Mississauga, Hazel McCallion, John McDougall, Kevin Duffy, Brian Walsh, Louise Ann Riddell, Roger Clement,

and Janice Baker

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: July 7, 2009

Citation: 2009 HRTO 990

Indexed as: Traversy v. Mississauga (City)

1The applicant filed an Application with the Tribunal on May 28, 2009 alleging discrimination and reprisal in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code").

2This Interim Decision deals with the following preliminary matters:

• The applicant's failure to complete Form 1-D;
• The applicant's request to expedite;
• The issue of a previous human rights complaint;
• The respondents' request to remove personal respondents and add a corporate respondent;
• The issue of deferral; and
• The respondents' request to dismiss the Application.

3The Application identifies the Mississauga Fire Fighter's Association, Local 1212, as the bargaining agent that may be affected by this proceeding. Although the Tribunal provided notice to Local 1212 of the Mississauga Fire Fighter's Association (the "Association"), regarding the Application and the Tribunal's intention to consider deferral, no submissions were received from the Association in this regard.

INCOMPLETE APPLICATION

4In his Application, the applicant alleged that, in addition to the area of employment discrimination (section 5 of the Code), another area of discrimination he experienced was in regards to contracts (section 3 of the Code). However, the applicant failed to complete the Application as it pertains to discrimination in the area of contracts, specifically Form 1-D.

5By way of letter dated June 1, 2009, the Tribunal notified the parties that the applicant had not completed the Application with respect to the alleged area of contracts discrimination and the Tribunal enclosed a copy of Form 1-D for the applicant's completion. The Tribunal provided the applicant until June 8, 2009 to complete and return the Form 1-D or to advise the Tribunal that the area of contracts discrimination was no longer being alleged. The applicant provided no response regarding this matter.

6Given the applicant's failure to complete Form 1-D and his failure to respond to the Tribunal's request for notification regarding the alleged contracts discrimination, the Tribunal orders that the Application will proceed only with respect to the allegations relating to discrimination in employment.

REQUEST TO EXPEDITE

7The applicant filed a Request to Expedite Proceedings, pursuant to Rule 21 of the Tribunal's Rules of Procedure for Applications under Part IV of the Code (the "Rules"). Rule 21.1 provides that the Tribunal may deal with an Application on an expedited basis in circumstances which require an urgent resolution of the issues in dispute. Rule 21.2 requires an applicant seeking an expedited process to identify the 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.

8In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at para. 9 the Tribunal held that, 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.

9The applicant requests that the Tribunal expedite his Application because he is experiencing financial hardship and because his health is deteriorating. The applicant claims that, given these circumstances, there is a possibility that he will lose his home. The applicant has made no supporting submissions regarding these assertions.

10The respondents object to the applicant's Request to Expedite. The respondents point out that the applicant has provided no explanation as to why the Tribunal should expedite these proceedings. The respondents submit that there is no evidence that an expedited process would alleviate the applicant's health condition, particularly given that he has a history of disability which underlies the basis of the allegations.

11The Request to Expedite is denied. The applicant did not identify any circumstances that are so particularly urgent as to distinguish this Application from other cases before the Tribunal. The Tribunal has held that financial hardship does not generally constitute an indication of urgency as compared with other employment dismissal cases, see Beals v. McArthur Properties, 2009 HRTO 684. Further, the applicant has not demonstrated that urgent circumstances exist with respect to his health that would affect the fair and just resolution of the merits of the Application.

POTENTIAL SECTION 53(8) ISSUE

12On a number of occasions in his Application narrative and in his supporting documentation, the applicant notes that he had previously filed a human rights complaint against the respondents. However, the applicant did not complete Question 13 in his Application which requires applicants to indicate whether a complaint was filed with the Ontario Human Rights Commission based on the same facts as set out in the Application. As such, it is unclear whether or not the Application relates to a previous complaint filed with the Ontario Human Rights Commission ("Commission").

13Section 53(8) of the Code 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.

14Under section 53(8) of the Code, the Tribunal lacks jurisdiction to accept an application in circumstances where the allegations contained in the application constituted the subject-matter of a complaint previously filed with the Commission under the old Part IV of the Code. As such, the Tribunal requires clarification with respect to whether or not a previous human rights complaint was filed with the Commission in relation to the circumstances set out in the current Application, and if so, whether or not this Application is barred by virtue of section 53(8).

15The Tribunal orders the applicant to notify the Tribunal and the other parties as to whether or not a previous human rights complaint was filed with the Commission regarding some or all of the subject-matter of this Application. If a previous complaint was filed with the Commission, the applicant must provide to the Tribunal and deliver to the other parties a copy of this human rights complaint and any decision made by the Commission regarding that complaint. Once the Tribunal is in receipt of this information, the Registrar will advise whether or not submissions regarding this issue are necessary.

REQUEST TO REMOVE PERSONAL RESPONDENTS AND ADD CORPORATE RESPONDENT

16The respondents indicate that, while the Application identifies seven individuals as personal respondents in the matter, the Application does not identify the applicant's employer, the Corporation of the City of Mississauga ("City of Mississauga"). The respondents take the position that, given this Application makes allegations regarding employment-related discrimination and reprisal, the City of Mississauga, as the employer, is the only appropriate respondent in the matter. The respondents submit that since all personal respondents are members of management and were acting within the scope of their duties, the Application against the personal respondents ought to be dismissed.

17The issue of the identification of personal respondents where a corporate respondent may also be liable in human rights applications has been considered in a number of recent decisions of the Tribunal, see: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14; Persaud v. Toronto District School Board, 2008 HRTO 31; Winter v. Arnprior (Town), 2009 HRTO 713. These cases articulate the various principles that are to be considered when assessing whether or not to add or remove a respondent from a complaint, including, inter alia, whether there is a named corporate respondent that is alleged to be liable for the conduct of the personal respondent, whether any personal respondent's individual conduct, independent from the corporate respondent, is in dispute and would any prejudice be caused, etc..

18In this case, given that the employer acknowledges responsibility for the actions of the named individuals and there appears to be no issue regarding the ability of the employer to respond to or remedy an alleged Code infringement, as well as the fact that the applicant has not objected to the City of Mississauga being identified as a corporate respondent, the Tribunal orders that the City of Mississauga be added as a respondent to the Application and the style of cause is amended accordingly. The request to remove respondents will be determined, if necessary, following the Tribunal's consideration of the section 53(8) issue.

DEFFERAL/DISMISSAL

19In his Application, the applicant indicated that the facts as set out in the Application were part of a grievance that is still in progress. The Tribunal invited the parties to make submissions as to why consideration of this Application should or should not be deferred. The applicant made no submissions regarding the issue of deferral.

20The respondents acknowledge that a grievance was filed on behalf of the applicant by his Association and that the Association had referred the grievance to arbitration on or about March 6, 2009. The respondents indicate that the Association and the applicant's employer, the City of Mississauga, are currently canvassing dates for the arbitration. The respondents request that the Application be dismissed as an abuse of process because the applicant is pursuing a grievance arbitration regarding the same matters as set out in his Application.

21In the circumstances, it is not necessary to consider the issues of deferral or dismissal at this stage. If necessary, the Tribunal will consider the issues of deferral and the respondents' Request to Dismiss after deciding whether or not section 53(8) applies to bar this Application.

CONCLUSION

22In conclusion, the Tribunal orders as follows:

• Within 14 days following the date of this Interim Decision, the applicant shall notify the Tribunal and the other parties whether or not a previous human rights complaint was filed with the Commission regarding the subject-matter of the current Application;
• If a previous human rights complaint was filed with the Commission, the applicant must provide to the Tribunal and deliver to the other parties a copy of this complaint and any decision made by the Commission regarding that complaint. Once the Tribunal is in receipt of this information, the Registrar will advise whether or not submissions regarding the issue of section 53(8) are necessary; and
• If it is determined that further submissions with respect to the section 53(8) issue are unnecessary, the Tribunal will proceed to consider whether or not to remove the personal respondents from the Application; the issue of deferral; and the respondents' Request to Dismiss.

23I am not seized of this matter.