Schleifer v. Toronto (City), 2011 HRTO 235

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cheryl Schleifer

Applicant

-and-

City of Toronto, John Janson and Sandra Cuff

Respondents

-and-

Canadian Union of Public Employees, Local 416

Intervenor

interiM DECISION

Adjudicator: Alison Renton

Date: February 2, 2011

Citation: 2011 HRTO 235

Indexed as: Schleifer v. Toronto (City)

1The hearing in this matter is scheduled for February 7 and 8, 2011. In file 2008-00051-S, the applicant alleges breach of settlement following minutes of settlement entered into between she and the respondents in March 2008 (the breach of settlement Application”). In file 2009-03455-I, the applicant alleges discrimination in employment on the grounds of disability and reprisal against the corporate respondent (“the section 34 Application”). The applicant is represented in the workplace by the Canadian Union of Public Employees, Local 416 (“the union”). This Interim Decision will address some of the outstanding issues raised by the parties.

Request to Intervene

2The union filed a Request to Intervene (Form 5) dated November 12, 2009. The applicant and the respondents filed separate Responses to a Request for Order (Form 11) (“Response to RFOP”) taking no position on the union’s request.

3Despite sending the union a copy of the Notice of Confirmation of Hearing, it appears that the Tribunal has not addressed the union’s Request to Intervene. In accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by the union, the union’s request to intervene is granted. Accordingly, the style of cause is amended to reflect the same.

Request to Amend Application

Further allegations of reprisal

4The applicant filed a Request for Order During Proceedings (“RFOP”) on November 23, 2010 to amend her Application to raise further allegations following the Response that was filed by the corporate respondent in the section 34 Application. In that regard, she seeks to rely upon discussions held and emails sent between counsel for the applicant and counsel for the respondents.

5The respondents filed a Response to the RFOP objecting to the applicant attempting to rely upon discussions held and emails sent between counsel claiming the Request is barred by absolute privilege and settlement privilege.

6The parties should be prepared at the commencement of the hearing to make submissions addressing the RFOP and the respondent’s Response to the RFOP including providing any relevant caselaw in support of their position.

Reimbursement of the cost of the FAE and transportation costs

7The applicant filed a further RFOP on January 21, 2011. The respondents’ Response to the RFOP is not due until February 4, 2011. The parties should be prepared to address the issue of this outstanding RFOP at the commencement of the hearing.

Dr. Watson’s Testimony

8By letter dated January 28, 2011, on which the counsel of the respondent and the union were copied, the applicant wrote to the Tribunal about the testimony of Dr. Watson, the applicant’s orthopaedic surgeon. The applicant requested that the Tribunal temporarily suspend the proceedings at 1:00 pm on February 7 to allow Dr. Watson to testify.

9The respondents responded to the applicant’s Request by sending a letter to the Tribunal also dated January 28, on which the counsel of the applicant and the union were copied, and stated that it was amenable to having the testimony of Dr. Watson proceed in the manner proposed by the applicant.

10Given the consent of the parties, the Tribunal will suspend the proceedings at 1:00 pm on February 7 to allow Dr. Watson to testify. It is unclear from the documents filed by the parties and the witness summary filed by the applicant, what, if anything, the respondents disputes about the proposed evidence of Dr. Watson.

Withdrawal of File 2008-00051-S

11In the applicant’s counsel’s January 28 letter, she advises that the applicant withdraws her Application in File 2008-00051-S on a without prejudice basis. The respondents have not provided a response on this issue and should be prepared to advise the Tribunal at the commencement of the hearing whether or not they consent to withdrawal of this Application. If the respondents object to the withdrawal, the Tribunal will hear submissions from the applicant in response to the respondents’ objection.