HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Enrique Jimenez
Applicant
-and-
Radmilla Pejovic
Respondent
interiM DECISION
Adjudicator: Alison Renton
Indexed as: Jimenez v. Pejovic
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”), on February 21, 2010 alleging discrimination on the basis of creed in employment by his manager, the respondent.
2The respondent filed a Response as well as a Request for Order During Proceedings (“RFOP”). In the RFOP, the respondent requests that the Tribunal dismiss the Application on a preliminary basis without a hearing on the basis that the applicant has failed to name a religion that would constitute a “creed” within the meaning of the Code and because the applicant has not established a prima facie case for discrimination. The applicant has filed a Reply, but not a Response to a Request for Order During Proceedings and the time for doing so has now passed.
3At this preliminary stage of the proceeding, there is no “evidence” before the Tribunal, but only “allegations” as set out in the Application, Response and Reply. As such, the Tribunal must assess a request to dismiss an application because the application allegedly fails to make out a prima facie case of discrimination on the basis of the allegations and information put forth by the parties in their materials. In order to proceed with an application, it is sufficient at this stage if the applicant raises allegations which, if accepted as true, would be enough to establish a prima facie case: see Drenic v. Governing Council of the Salvation Army, 2009 HRTO 1059 at para. 7.
4It is appropriate in my view to schedule a one hour conference call hearing to address the issue of whether the allegations in the Application constitute “creed” under the Code and whether the facts in the Application establish a prima facie violation of the Code. If either party wishes to rely on any additional written materials (including written submissions, documents or case law) or facts not already before the Tribunal, they must deliver such additional material to the other party and file it with the Registrar within 21 days of the date of this Interim Decision. The Tribunal’s case law is found at www.CanLII.org. Following the conference call, the Tribunal will determine whether or not there is a basis to proceed with the Application and may make further directions.
ORDER
5The Tribunal makes the following orders:
a) The Tribunal will schedule a one hour conference call hearing to hear the parties’ submission on:
a. whether the allegations in the Application constitute “creed” within the meaning of the Code; and
b. whether the facts in the Application raise a prima facie violation of the Code.
6The following directions shall apply to the conference call hearing:
a. The applicant should be prepared to proceed first at the conference call hearing, by responding to the written arguments of the respondent on the above questions.
b. Any party that wishes to rely on any written materials (including written submissions, documents or case law) or rely on any facts not obtained in the Application, Response, Request for Order During Proceedings and Response to a Request for Order During Proceedings must deliver them to the other parties and file them with the Registrar within 21 days of the date of this Interim Decision.
7The Tribunal draws the applicant’s attention to the Applicant’s Guide and the Guide to Preparing for a Hearing before the Human Rights Tribunal of Ontario, available on the Tribunal’s website or from the Registrar’s office.
8I am not seized with this matter.
Dated at Toronto, this 25th day of May, 2010.
“Signed by”
Alison Renton
Vice-chair