Christine Longtin v. Ottawa Hospital – Civic Campus and Y. Charbonneau, 2010 HRTO 959

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christine Longtin

Applicant

-and-

Ottawa Hospital – Civic Campus and Y. Charbonneau

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: April 30, 2010

Citation: 2010 HRTO 959

Indexed as: Longtin v. Ottawa Hospital

WRITTEN SUBMISSIONS BY

Christine Longtin, Applicant ) On her own behalf

1The purpose of this Interim Decision is to address whether the Application is within the Tribunal’s jurisdiction, and to request written submissions from the parties as to whether the Tribunal should defer consideration of the Application pending the outcome of a proceeding before the College of Physicians and Surgeons of Ontario.

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 October 5, 2009, which alleged that the respondents discriminated against her with respect to employment, housing and services because of her disability, sexual orientation and marital status.

3In section 7 of the Application, the applicant stated that the date of the last event was February 26, 2007, and she was applying more than one year from the last event because she only discovered the discrimination after she obtained copies of her medical records from the respondents. It is not clear from her Application when she obtained the records.

4In section 14 of the Application, the applicant acknowledged that the facts of the Application are part of another proceeding that is still in progress (a complaint to the College of Physicians and Surgeons of Ontario), but did not request that the Tribunal defer the Application until the proceeding before the College is completed.

5On February 19, 2010, the Tribunal’s Registrar issued a Notice of Intent to Dismiss, which informed her that the Application appears to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The Tribunal invited the applicant to provide written submissions to explain why the Application is within the Tribunal’s jurisdiction.

6The applicant filed written submissions on March 5, 2010, which did not address the timeliness issue raised in the Tribunal’s Notice.

7The statutory deadline for filing an Application with the Tribunal and the circumstances under which a late Application will be accepted are set out in subsections 34(1) and (2) of the Code:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

8Rule 13.2 of the Tribunal’s Rules of Procedure states that where it appears to the Tribunal that an Application is outside its jurisdiction, it shall, prior to sending the Application to the respondents, issue a Notice of Intention to Dismiss the Application. The Notice is only sent to the applicant, and requires her to file written submissions. Under the Tribunal’s jurisprudence, an Application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the Application that it does not fall within its jurisdiction: Masood v. Bruce Power, 2008 HRTO 381; Morin c. 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 of the Application (Rule 13.5).

9In my view, it is not plain and obvious that the applicant’s delay in filing the Application was not incurred in good faith. Furthermore, there is no evidence at this preliminary stage of the proceeding that substantial prejudice will result to any person affected by delay. However, this is not a final decision with respect to the issue of whether the Application is barred by section 34 of the Code because it is untimely.

10In my view, there is also an issue as to whether Tribunal should defer consideration of the Application pending the outcome of the proceeding before the College of Physicians and Surgeons of Ontario. Section 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.

11In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

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.

12In my view, it is appropriate to request written submissions from the parties as to whether the Tribunal should defer consideration of the Application pending the outcome of the proceeding before the College of Physicians and Surgeons of Ontario.

13The Tribunal shall serve the Application, the applicant’s written submissions and a copy of this Interim Decision on the respondents. The respondents are directed to file a full Response to the Application, which includes submissions on the timeliness and deferral issues, within 35 days of delivery of the Application to them. The applicant is directed to file a full Reply to the Response, which includes submissions in reply to the respondents’ submissions on these two issues, within 14 days of delivery of the Response to her.

14I am not seized of this matter.