HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deborah Guydos

Applicant

-and-

Workplace Safety and Insurance Appeals Tribunal

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: October 12, 2012

Citation: 2012 HRTO 1944

Indexed as: Guydos v. Workplace Safety and Insurance Appeals Tribunal

WRITTEN SUBMISSIONS

Deborah Guydos, Applicant

Self-represented

Workplace Safety and Insurance Appeals Tribunal, Respondent

Daniel Revington, Counsel

Introduction

1This Interim Decision deals with the applicant’s request that her Application be reactivated, and a recent Request for Order During Proceedings and Form 1 (Application) submitted by the applicant. It also provides direction about the future handling of the Application.

2The applicant filed an Application with the Tribunal on June 28, 2010, alleging discrimination by the Workplace Safety and Insurance Appeals Tribunal (WSIAT) on a number of grounds including disability, sex, family status, and reprisal.

3In Interim Decision 2011 HRTO 479, dated March 8, 2011, the Tribunal dismissed all but one of the allegations because the Tribunal does not have jurisdiction to deal with the allegations.

4The one allegation that was not dismissed was the allegation that the respondent discriminated against the applicant by failing to offer to provide funding for child care in order for her to attend the WSIAT hearing. The Interim Decision concluded that WSIAT’s alleged failure to offer to provide funding for child care “relates to a benefit or privilege and is a service within the meaning of section 1 of the Code.”

5However, the Interim Decision also determined that the Tribunal should defer further consideration of the Application because the applicant had asked the WSIAT to reconsider its decision finding that the applicant was not entitled to benefits under the Workplace Safety and Insurance Act, 1997.

6The WSIAT ultimately denied the applicant’s reconsideration request. The applicant however filed a right to sue application with the WSIAT, seeking an order that would permit her to bring a civil action against her employer. The WSIAT is still processing that application.

7The applicant filed a Request for Order During Proceedings in September 2012, asking the Tribunal to reactivate the Application because the reconsideration process at WSIAT is completed.

8The respondent responded to the applicant’s request and opposes re-activation of the Application. The respondent states that the right to sue application is based on the same facts and allegations as those that were before the WSIAT at the time it made its original decision and its reconsideration of that decision and that the Application should therefore remain deferred.

9On September 14, 2012, the applicant filed a Request for Order During Proceedings and a new Application form. It appears that this relates to the applicant’s continuing issues with WSIAT. The respondent has not been required to respond to the Request for Order During Proceedings.

Conclusions

10I note again that the only issue in this Application is whether the respondent discriminated against the applicant by failing to offer to provide funding for child care in order for her to attend the WSIAT hearing.

11It seems unlikely that this issue has anything to do with any of the issues that the WSIAT may be determining with regard to its determination of whether the Workplace Safety and Insurance Act takes away the applicant’s right to bring a legal action against her employer.

12I am therefore satisfied that it is appropriate to reactivate the Application.

13The earlier Interim Decision found that the allegation that WSIAT discriminated against the applicant contrary to the Code by failing to offer to provide funding for child care in order for her to attend the WSIAT hearing is a matter that the Tribunal has jurisdiction to determine. However, it is not clear how the applicant will show that WSIAT’s failure to offer to pay child care expenses resulted in discrimination on the basis of family status.

14Rules 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.

15Details 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.

16In the circumstances of this case, I find that it is appropriate for the Tribunal to hold a summary hearing to determine whether this Application should be dismissed on the basis that there is no reasonable prospect that the applicant will be able to establish, on a balance of probabilities that a failure to offer to pay for child care resulted in an infringement of the applicant’s Code-protected rights.

17The Registrar will schedule a half-day summary hearing by teleconference. During the hearing the applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will prove a link between the alleged failure to offer to pay for child care and discrimination on the grounds of family status. No witnesses will give evidence during the summary hearing.

18If the Tribunal determines that the Application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not find that the Application should be dismissed under Rule 19A, it will continue in the Tribunal process.

19At the summary hearing, the Tribunal will also hear from the applicant about the recent Request for Order During Proceedings and the included new Application form. The applicant will explain what this relates to. If it relates to the same issues or type of issues that were previously dismissed by the Tribunal in respect of the original Application, the applicant will have an opportunity to explain why the new matters should not be dismissed for the same reasons that the previous allegations were dismissed or because there is no reasonable prospect of success or because processing the new Application would result in an abuse of process.

20A Notice of Summary Hearing will follow from the Registrar’s Office. 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.

21The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at www.hrto.ca.

DIRECTION

22The 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.

23I am not seized.