HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cathy Moncur

Applicant

-and-

Beach Grove Golf and Country Club

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: September 4, 2012

Citation: 2012 HRTO 1664

Indexed as: Moncur v. Beach Grove Golf and Country Club

WRITTEN SUBMISSIONS

Cathy Moncur, Applicant ) Mary Jane Campigotto, Counsel

Beach Grove Golf and ) Nancy Jammu-Taylor, Counsel

Country Club, Respondent )

INTRODUCTION

1The purpose of this Interim Decision is to address (1) the applicant’s request that the proceeding be held in abeyance, and (2) the applicant’s refusal to provide her availability for one additional day of hearing.

BACKGROUND

2On December 31, 2009, the applicant filed an Application for Contravention of Settlement under s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), which alleged that the respondent breached the settlement of a previous Application and subjected her to reprisal. On January 21, 2010, the respondent filed a Response, which denied all the allegations of breach of settlement and reprisal.

3The Tribunal’s Registrar sent the parties a Notice of Confirmation of Hearing, which informed them that the Tribunal had scheduled a hearing of the Application for half a day on April 28, 2011.

4On April 28, 2011, the Tribunal started hearing the parties’ evidence with respect to the issue of whether or not the respondent breached the settlement of a previous Application. At the end of the half day of hearing, the Tribunal informed the parties that two further hearing dates would be scheduled to hear the remaining evidence with respect to the breach of settlement issue, followed by the parties’ evidence with respect to the issue of reprisal.

5On June 8, 2011, in response to a Case Assessment Direction (“CAD”) that the Tribunal issued, which noted that the parties appeared to have settled one of the reprisal allegations in a civil proceeding, the respondent filed a Request for an Order During Proceedings (“RFOP”), which requested that the Tribunal dismiss the applicant’s reprisal allegation pertaining to an incident that occurred on November 13, 2009. The respondent requested that the allegation be dismissed (a) pursuant to s. 45.1 of the Code, (b) because it is an abuse of the Tribunal’s process, and/or (c) pursuant to s. 34(11) of the Code. On June 24, 2011, the applicant filed a Response, which opposed the respondent’s Request to dismiss the allegation at issue.

6The Tribunal’s Registrar issued a Notice of Confirmation of Rescheduled Hearing to the parties, which informed them that the hearing was scheduled to continue on February 8 and 9, 2012.

7On January 19, 2012, the Tribunal issued a CAD which informed the parties that the hearing would proceed in the following manner:

1. The Tribunal will finish hearing the parties’ evidence and submissions on the contravention of settlement allegation.

2. The Tribunal will hear, as a preliminary issue, the parties’ evidence and submissions with respect whether the applicant’s reprisal allegation pertaining to an incident that occurred on November 13, 2009 should be dismissed (a) pursuant to s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), (b) because it is an abuse of the Tribunal’s process, and/or (c) pursuant to s. 34(11) of the Code.

3. The Tribunal will hear the parties’ evidence and submissions on the merits of any outstanding reprisal allegations.

8On February 8 and 9, 2012, the hearing proceeded in the manner set out above. After hearing the parties’ evidence and submissions with respect to the preliminary issue set out in 2) above, I orally dismissed the applicant’s reprisal allegation pertaining to an incident that occurred on November 13, 2009. I informed the parties that written reasons would follow the hearing.

9At the hearing, the applicant also requested that the outstanding allegations of reprisal in her Application be withdrawn, and that her Application be amended to include an additional allegation of reprisal that occurred in April 2010. I granted the applicant’s request to withdraw the outstanding allegations of reprisal in her Application. I also decided to grant the applicant’s request to amend her Application on the condition that the new reprisal allegation is heard expeditiously.

10On March 26, 2012, the applicant filed an RFOP which requested the proceeding be held in abeyance until after a Judicial Review process has concluded. On May 16, 2012, the Tribunal issued an Interim Decision, which denied the applicant’s Request. The Interim Decision also directed the parties to communicate with each other, and advise the Tribunal’s Registrar by no later than two weeks from the date of the Interim Decision as to their availability for one additional day of hearing to deal with the new allegation of reprisal. See Moncur v. Beach Grove Golf and Country Club, 2012 HRTO 984.

ABEYANCE REQUEST

11On May 30, 2012, the applicant filed an RFOP which requested the proceeding be held in abeyance because the Ontario Court of Appeal had issued a Decision which set aside part of the settlement of the civil matter between the parties. See Moncur v. Harris, 2012 ONCA 281. The applicant stated that the proceeding should be held in abeyance to support the parties’ efforts to craft Minutes of Settlement and resolve both cases.

12On June 13, 2012, the respondent filed a Response which opposed the applicant’s Request because, in its view, the civil matter between the parties remained resolved. On June 19, 2012, the applicant filed a Reply which stated that the proceeding should be held in abeyance until it can be determined what the implications of the Court of Appeal’s Decision are, and whether a settlement can be achieved in all venues.

13On August 29, 2012, the respondent filed further submissions which stated that the parties made amendments to the Minutes of Settlement, the necessary documentation has been forwarded to the Ontario Superior Court of Justice, and the parties are awaiting the return of the Court endorsed Order. The respondent also reiterated its view that the civil matter between the parties remained resolved. On the same day, the applicant also filed further submissions which essentially repeated the submissions in her RFOP and Reply.

14The applicant’s Request that the proceeding be held in abeyance is denied. This Tribunal has a duty to dispose of applications fairly, justly and expeditiously. See s. 40 of the Code and Rule 1.1 of the Tribunal’s Rules. I appreciate that the ultimate resolution of the issue in the civil matter may have an impact on some of the issues to be determined in the case before this Tribunal, but, in my view, this is something that can be addressed through submissions from the parties after the Superior Court issues its Order, and there is no need to hold this proceeding in abeyance in the interim period.

ADDITIONAL HEARING DAY

15The respondent has fully complied with the Tribunal’s direction to provide its availability for one additional day of hearing, but the applicant has refused to provide her availability, despite receiving further requests from the Tribunal’s Registrar. Most recently, the Registrar offered to hold the hearing on December 3, 4, 5, 6, 7, 17, 18, 19, 20, or 21, 2012. On August 14, 2012, the respondent confirmed its availability for some of those dates. On August 27, 2012, the applicant’s counsel filed a letter with the Tribunal, which raised several issues, and then stated “…we cannot and will not provide you with scheduling dates until the above has been attended to.”

16The applicant’s position is unacceptable because it undermines the Tribunal’s mandate to dispose of applications fairly, justly and expeditiously, and effectively thwarts the Tribunal’s process. In the circumstances, the applicant is warned that if she fails to comply with the Tribunal’s direction to provide her availability for one additional day of hearing within one week of the date of this Interim Decision, the Tribunal shall dismiss her new allegation of reprisal. See Ouwroulis v. New Locomotion, 2009 HRTO 335, and Eisenberg v. Seneca College of Applied Arts and Technology, 2012 ONSC 4802.

ORDER

17The Tribunal makes the following orders and directions:

1. The applicant’s Request that the proceeding be held in abeyance is denied.

2. Within two weeks of the date of the Ontario Superior Court of Justice’s Order with respect to the civil matter, the applicant shall deliver to the respondent and file with the Tribunal a copy of the Order and written submissions on the impact, if any, of the Order on any of the issues to be determined in the case before this Tribunal. Within two weeks of receiving the applicant’s submissions, the respondent shall deliver to the applicant and file with the Tribunal submissions in response.

3. Within one week of the date of this Interim Decision, the applicant shall comply with the Tribunal’s direction to provide her availability for one additional day of hearing. If she refuses or fails to do, the Tribunal shall dismiss her new allegation of reprisal.