Kilpatrick v. Summit Food Service Distributors, 2012 HRTO 1480

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joseph Kilpatrick Applicant

-and-

Summit Food Service Distributors Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta Date: July 30, 2012 Citation: 2012 HRTO 1480 Indexed as: Kilpatrick v. Summit Food Service Distributors

WRITTEN SUBMISSIONS

Joseph Kilpatrick, Applicant Gavin Cond, Counsel

Summit Food Service Distributors, Respondent Lisa M. Kwasek, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability. The Application initially named the applicant’s former employer, Summit Food Services Distributors (“Summit”) and Teamsters Local 879 (the “union”) as respondents.

Withdrawal of Application Against the Union

2The Tribunal, on its own initiative, issued a Case Assessment Direction, dated April 16, 2012, in which it directed that a summary hearing be held in order to hear submissions on whether the Application had any reasonable prospect of success as against the union.

3Shortly thereafter, the applicant filed a Form 9, seeking to withdraw its Application as against the union. Neither the union nor respondent Summit have filed any responses to the applicant’s Form 9 and the time for them to do so has elapsed.

4The Application is withdrawn as against the union, Teamsters Local 879, and the style of cause is amended accordingly.

Delay in Filing Application and Request for Summary Hearing

5Respondent Summit has filed a Response in which it argues that incidents in 2008 and 2009 do not form part of a series of events that are related to the circumstances surrounding the end of the applicant’s employment relationship with his former employer. In any event, they argue that the employment relationship ended in March 2010 and the Application was not filed until December 2011. As such, respondent Summit argues that the Application ought to be dismissed on the basis of delay.

6The applicant has filed a Reply in which he argues that the 2008 and 2009 incidents do form part of a series of incidents and that there are good faith reasons for any delay in filing the Application.

7Section 34 of the Code provides as follows:

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.

8The respondent has also made a request that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

9Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

10Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

11The Request for Summary Hearing is granted. A summary hearing will be held to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed or on the basis of delay.

12The Registrar will schedule a half-day summary hearing by teleconference. If the Tribunal determines that the Application has no reasonable prospect of success or is outside its jurisdiction because of delay, it will be dismissed. If the Tribunal does not find that the Application should be dismissed, it will continue in the Tribunal process. The Application may be dismissed in whole or in part.

DIRECTION

13The Registrar will schedule a half-day summary hearing by conference call. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference

14I am not seized.