Knight v. Toronto Community Housing, 2010 HRTO 2025

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joy Knight

Applicant

-and-

Toronto Community Housing Corporation and Justin Lewis

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: October 5, 2010

Citation: 2010 HRTO 2025

Indexed as: Knight v. Toronto Community Housing

1The purpose of this Interim Decision is to address whether the Application should be dismissed against certain respondents, and to request submissions from the parties on whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of a grievance proceeding.

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 16, 2010, which alleges that the organization respondent (Toronto Community Housing Corporation) and seven individual respondents (Justin Lewis, Jennifer Defour, David McAuley, Pat Milana, Luisa Muffo-Magalhaes, Graham Leah, and Vishnu Ramsamujh) discriminated against her because of her disability.

3On June 11, 2010, the Tribunal’s Registrar issued the applicant a Notice of Intent to Dismiss Against Certain Respondents, which informed her that the Application as against certain of the named respondents (all the individual respondents except for Mr. Lewis) appears to be outside of the Tribunal’s jurisdiction because the Application and the narrative setting out the incidents of alleged discrimination fail to identify any specific acts of discrimination committed by those individuals. The Tribunal invited the applicant to provide written submissions to explain how each individual respondent (with the exception of Mr. Lewis) is alleged to have breached the Code.

4The applicant did not file submissions and the time for doing so has now passed.

5An 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 c. Alliance de la fonction publique du Canada, 2008 HRTO 58, and Hotte v. Ontario (Finance), 2008 HRTO 63.

6In my view, it is plain and obvious on the face of the Application that the allegations as against all the individual respondents, with the exception of Mr. Lewis, do not fall within the Tribunal’s jurisdiction because there is no explanation as to how each of them is alleged to have breached the Code. The Tribunal therefore orders that they be removed as respondents to the Application. The style of cause shall be amended accordingly.

7The next issue to address is whether the Tribunal should defer consideration of this Application pending the conclusion of a grievance proceeding. In section 14 of the Application, the applicant acknowledged that the facts of the Application are part of a union grievance proceeding that is still in progress, but did not request that the Tribunal defer her Application until the grievance proceeding is completed. She attached a copy of a grievance dated January 28, 2010 to her Application.

8Section 45 of the Code provides that the Tribunal may defer an application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

9In Baghdasserians v. 674460 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-20:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

10In my view, it is appropriate to request written submissions from the parties and the applicant’s union (Toronto Civic Employees’ Union, Local 416) as to whether the Tribunal should defer consideration of the Application pending the conclusion of the grievance proceeding.

11The respondents are directed to deliver to the applicant and her union and file with the Tribunal by October 19, 2010 written submissions, including documents and case law, if any, which address the issue of deferral.

12The union is directed to deliver to the applicant and the respondents and file with the Tribunal by November 2, 2010 written submissions, including documents and case law, if any, in response.

13The applicant is directed to deliver to the respondents and her union and file with the Tribunal by November 16, 2010 written submissions, including documents and case law, if any, in response.

14The respondents are not required to file a Response to the Application until the Tribunal directs them to do so.

15I am not seized of this matter.