Alejandro Juani v. City of Mississauga, 2010 HRTO 1298

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alejandro Juani

Applicant

-and-

City of Mississauga

Respondent

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: June 8, 2010

Citation: 2010 HRTO 1298

Indexed as: Juani v. Mississauga (City)

1The 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 January 8, 2010. He alleges discrimination on the basis of place of origin, and reprisal, in employment.

2On March 2, 2010, the Tribunal issued a Notice of Application to the respondent. The respondent was advised that a Response (Form 2) must be filed with the Tribunal within 35 days.

3On March 23, 2010, the respondent filed a Form 10, Request for Order During Proceedings (RFOP), requesting an order that the applicant provide particulars of the allegations of discrimination based on place of origin; dismissing the Application for failure to disclose a prima facie case of reprisal or, alternatively, an order to provide particulars of the reprisal allegations; and an order extending the respondent’s time to file a Response to 35 days after the applicant files the particulars sought.

4On April 20, 2010, the applicant filed a Form 11 consenting to the respondent’s requests and providing the particulars sought.

5Regarding the respondent’s request for early dismissal of the allegations related to reprisal, as a matter of course, the Tribunal requires respondents to file complete responses prior to hearing any preliminary objections. There are limited exceptions to this general rule, outlined in Rule 8.2, and summarized in Masood v. Bruce Power, 2008 HRTO 381, at para. 8:

The Tribunal’s response form permits a request for early dismissal without a full response in only three circumstances: where the respondent alleges that a claim for relief based upon the same facts was filed in civil court, that a complaint was filed with the Ontario Human Rights Commission based upon the same, or substantially the same facts, or that a full and final release was signed. In all other circumstances, respondents must file a full response, even where a preliminary or jurisdictional issue is being raised.

6The Tribunal in Masood created an additional fourth category of cases in which a full Response may not be necessary, namely when the respondent alleges that the matter falls under federal jurisdiction. The preliminary issues raised in the respondent’s Request do not fall into any of the four categories identified in Masood.

7As the Tribunal indicated in Grant v. Bombardier, 2009 HRTO 267, the filing of a complete response is an integral part of the Tribunal’s process. It allows the parties to better understand the nature of the issues and assists the Tribunal in determining how best to proceed with the Application with a view to facilitating its fair, just and expeditious resolution, including making preliminary determinations.

8The Tribunal may vary or waive the application of its Rules, including the requirement to file a full Response. Absent exceptional circumstances, which are not present in this case, a request for particulars will not delay the filing of a complete response: Ugolini v. Salvation Army Barrie, 2009 HRTO 1801. Here, the allegations are now sufficiently detailed that, in my view, the respondent is in a position to meaningfully respond to the Application. It remains open to the respondent to raise preliminary issues in the Response or to file a Request for an Order during Proceedings after filing the Response.

9In view of the above, I find there is no basis at this point to grant the respondent’s request to dismiss the Application for failing to disclose a prima facie case of reprisal.

10The respondent is ordered to file a Response within five days of the date of this Interim Decision.