Villella v. Regional Municipality of York Emergency Medical Services Branch, 2010 HRTO 2110

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jessey Villella Applicant

-and-

The Regional Municipality of York Emergency Medical Services Branch, Ben Thompson and Joseph Neumayer Respondents

AND B E T W E E N:

Jessey Villella Applicant

-and-

The Regional Municipality of York Police Services Board and Vernon Ward Respondents

AND B E T W E E N:

Jessey Villella Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Ministry of Health and Long-Term Care Respondent

RECONSIDERATION DECISION

Adjudicator: Mark Hart Date: October 19, 2010 Citation: 2010 HRTO 2110 Indexed as: Villella v. Regional Municipality of York Emergency Medical Services Branch

WRITTEN SUBMISSIONS BY

Jessey Villella, Applicant ) John Villella, Representative Her Majesty the Queen in right of Ontario ) William Georgas, Counsel as represented by the Ministry of Health ) and Long-Term Care, Respondent )

ii

1These are three Applications made under s. 53(5) of the Ontario Human Rights Code, R.S.O, c. H. 19, as amended (the “Code”), all dated June 29, 2009. The underlying complaints were all filed with the Ontario Human Rights Commission (the “Commission”) on June 28, 2007.

2The Applications all allege discrimination because of race, ethnic origin, creed and sex in the provision of services, arising out of an incident in the early morning hours of January 1, 2007 where the applicant sustained injuries from an altercation at a New Year’s Eve party.

3On August 23, 2010, Vice-chair Muir issued a Case Assessment Direction addressing a Request for Order filed by the respondent Ministry of Health and Long-Term Care (the “Ministry”) to dismiss the Application against it for failure to disclose a prima facie case of discrimination. Vice-chair Muir made the following determination regarding this request:

The respondent has raised a substantial issue in its Request. A hearing in this and two related matters has already been scheduled to begin on November 16, 2010. The applicant has not waived his right to make oral submissions. I find that the most just, fair and expeditious manner of proceeding is to deal with this Request at the outset of the hearing in November.

4Subsequently, on September 2, 2010, I issued a Decision, 2010 HRTO 1810, in which I dealt with the Ministry’s request in writing and dismissed the Application against it on the basis that there was no factual or legal foundation to support the allegations of discrimination against the Ministry, such that the Application against the Ministry was not within this Tribunal’s jurisdiction.

5I was not aware of Vice-chair Muir’s Case Assessment Direction at the time I issued my Decision. Responsibility for interim matters in this file was assigned to Vice-chair Muir. I assumed oversight of this matter while Vice-chair Muir was on vacation, and the Request for Order filed by the Ministry got onto my list of pending decisions. Vice-chair Muir completed the Case Assessment Direction in accordance with his responsibilities after he returned from vacation. However, the Case Assessment Direction was not in the file when it was reviewed by me for the purpose of rendering my Decision.

6By letter dated September 20, 2010, the Tribunal advised the parties that it intended to reconsider my Decision on the Tribunal’s own initiative, pursuant to Rule 25.9 of the Rules for Transitional Applications, and the parties were afforded an opportunity to make submissions regarding the Tribunal’s intention. Submissions were received from the applicant and the respondent Ministry.

7By letter dated September 27, 2010, the Tribunal clarified for the parties that it was only reconsidering the September 2, 2010 decision to the extent of any inconsistency with the prior Case Assessment Direction, and accordingly, the timelines set out in the September 2, 2010 decision remained in effect and were to be complied with by the parties.

8The applicant takes the position that Vice-chair Muir’s Case Assessment Direction determined that the issue of the respondent Ministry’s request to dismiss the Application against it should be the subject of oral submissions at the scheduled hearing, and therefore that it was not open to me to subsequently determine this request in writing. I agree.

9Pursuant to s. 43(2).1 of the Code, an application that is within this Tribunal’s jurisdiction shall not be finally disposed of without affording the parties an opportunity to make oral submissions. As Vice-chair Muir already had determined that oral submissions were required in order to address the Ministry’s request to dismiss, it was not open to me to make any decision on that matter. While I agree with the respondent Ministry’s submissions concerning finality and fairness, in the particular and exceptional circumstances of this case I am satisfied I should exercise my discretion to reconsider the decision dismissing the Application as against the Ministry.

10As a result, I find that it is appropriate to reconsider my Decision to dismiss the Application as against the Ministry pursuant to Rule 25.5(d) on the basis that there are factors that outweigh the public interest in the finality of Tribunal decisions, and I set aside my Decision only to the extent that it dismissed the Application against the Ministry. That issue will be determined at the hearing in these matters, and after hearing and considering the parties’ oral submissions.

11As stated previously by this Tribunal, all other matters addressed in my Decision, and in particular the timelines set out for completion of various case management matters, remain in effect and are to be complied with by the parties.

12I am not seized.