Steve O’Brien v. The Ottawa Mission, 2010 HRTO 1033

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steve O’Brien Applicant

-and-

The Ottawa Mission Respondent

INTERIM DECISION

Adjudicator: Judith Keene Date: May 7, 2010 Citation: 2010 HRTO 1033 Indexed as: O’Brien v. Ottawa Mission

1This is a reconsideration on the Tribunal’s own motion of a Decision to dismiss the Application dated 17 March 2010: 2010 HRTO 574.

2The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on July 21, 2009.

3On January 14, 2010, the Tribunal issued a Notice of Intent to Dismiss to the applicant. It directed the applicant to provide submissions responding to issues raised in the Notice. The issues identified were the apparent existence of an ongoing civil proceeding alleging an infringement of the Code and a failure to identify a ground or area of discrimination or to explain an allegation of “reprisal”. The Notice advised the applicant that if he did not make submissions by the required time, the Tribunal would make its decision based only on the information in the Application or might consider the failure to respond as an abandonment of the Application.

4Because of a processing error for which the Tribunal apologises to the parties, my information at the time of the decision was that the applicant had not provided any submissions, and, the time for doing so having elapsed, I dismissed the Application. In fact, the applicant had sent timely submissions to the Tribunal on February 14, 2010.

5This Interim Decision deals with a very narrow issue; whether the Tribunal appears to have jurisdiction over any part of the matter raised by the applicant. An application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction: Masood v. Bruce Power, 2008 HRTO 381; Morin v. Alliance de la function publique du Canada, 2008 HRTO 58; Hotte v. Ontario (Finance), 2008 HRTO 63. A decision to continue to deal with an application is not a final decision regarding the Tribunal’s jurisdiction in respect to the Application: Rule 13.5.

6Upon review of the original Application, the accompanying materials and the applicant’s submissions of 14 February, it appears that the applicant does cite one issue in respect of which it is not plain and obvious that the Tribunal has no jurisdiction. That issue is the respondent’s decision effected on March 9, 2009 (according to material apparently filed by the respondent with a court) to refuse further service to the applicant. The applicant appears to allege that this action breached the Code on the ground of disability. The applicant has also stated that this action constituted a reprisal for the purposes of the Code, but has not alleged facts that would support this.

7The applicant has provided documents related to a civil suit in Small Claims Court against the respondent, which is framed in negligence but which briefly alleges “violation of human rights”. The filed Statement of Claim does not specifically refer to the decision to refuse service. The applicant alleges that this matter was dismissed as not disclosing a cause of action. While the applicant clearly wishes to appeal the matter, he also states that he cannot do so until he pays an outstanding costs award of $2200. The applicant having alleged that he is homeless and unemployed, it appears that he may be unable to fulfill this condition.

8Based on the material before me, I am unable to determine whether it is plain and obvious that this Application is barred based on this civil claim.

9In the circumstances, this Application may proceed as based on the applicant’s allegation that the March 9, 2009 refusal of further services breached the Code. However, I note that at this stage the Tribunal has received only submissions from the applicant concerning the court case, and has not heard from the respondents on this point. In filing its Response, the respondents should address whether subsection 34(11) applies to bar this Application.

10I am not seized of the matter.