James v. Workplace Safety and Insurance Board, 2012 HRTO 539

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Keron James

Applicant

-and-

Workplace Safety and Insurance Board, Southrim Enterprises Inc., Frances Lord, Labourers’ International Union of North America, B & S Associates Professional Corporation, Marg Green, Cecile Carrol, Lorianne Ledwez and Kenneth Jeffrey

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: March 15, 2012

Citation: 2012 HRTO 539

Indexed As: James v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS BY

Keron James, Applicant ) Stanley Saich and Krishna ) Badrinarayan, Representatives

Southrim Enterprises Inc., ) Marg Green, Cecile Carrol, ) Sharon Chilcott, Counsel and Lorianne Ledwez, Respondents )

Workplace Safety and Insurance Board ) and Frances Lord, Respondents ) Gurjit Brar, Counsel

Labourers’ International Union ) Brad Ridge, Counsel of North America, Respondent )

B & S Associates Professional Corporation ) Ramon Andal, Counsel and Kenneth Jeffrey, Respondents )

1This Application was filed on September 2, 2011, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in a return to work meeting attended by the respondents.

2On October 25, 2011, the Tribunal, on its own initiative, directed 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 it will succeed.

3On December 5, 2011, the parties were advised that the summary hearing would proceed on February 14, 2012, from 9:30 a.m. to 12:30 p.m., by way of teleconference.

4Materials were filed on the summary hearing by Mr. Badrinarayan (applicant), Ms. Chilcott (employer and individual respondent employees), Mr. Brar (WSIB and Ms. Lord) and Mr. Andal (B & S Associates and Kenneth Jeffrey).

5On February 14, 2012, the summary hearing commenced. The representatives for the applicant, Mr. Saich and Mr. Badrinarayan, advised that they had not been served with the material filed by Mr. Brar and that they had not consented to the e-mail delivery of material by Mr. Andal. Counsel of the union, Mr. Ridge, advised that he had received only the materials filed by the applicant and the employer.

6The summary hearing was adjourned because the applicant and the union were not in receipt of all of the material filed.

7Given the number of parties involved in this proceeding and the lengthy materials filed, the Tribunal determined the summary hearing would be rescheduled to an in-person hearing.

8The Tribunal contacted the parties on February 21, 2012, to canvass dates in March, April and May, 2012 to reschedule the summary hearing.

9On February 22, 2012, the Tribunal received correspondence from Mr. Badrinarayan advising the Tribunal that Mr. Saich is unavailable to attend the hearing in April because he is scheduled for surgery and Mr. Badrinarayan is unavailable during the month of May for family reasons. Mr. Badrinarayan requested that the hearing be scheduled during the time period July to December 2012.

10The Tribunal requested the parties’ submissions regarding rescheduling the summary hearing during the period July to December 2012, as requested by the applicant’s representatives. Mr. Brar did not object to the rescheduling, but requested that it be scheduled at the earliest date possible. Mr. Andal took no position on the request. Ms. Chilcott expressed concern about the lengthy delay and noted the impact of the delay on the individual respondents whom she believes have been unnecessarily named in the Application. Ms. Chilcott questioned why both of the applicant’s representatives are required to attend the summary hearing and requested that it be scheduled at the earliest possible date. Mr. Ridge did not provide submissions on the applicant’s scheduling request.

11As a result of the parties’ submissions on the lengthy delay suggested by the applicant, the Tribunal requested the parties’ availability to schedule the hearing in June 2012. Although this was prior to the time period suggested by the applicant’s representatives, it appeared that one of them would be available to attend the summary hearing in June.

12In response to the Tribunal’s communications regarding a June hearing date, the Tribunal received lengthy correspondence dated March 9, 2012 from Mr. Badrinarayan providing further information supporting the applicant’s request to schedule the hearing between July and December 2012. Mr. Badrinarayan advised, for the first time, that Mr. Saich would be representing the applicant at the summary hearing. He further advised that as a result of the surgery in April 20120, Mr. Saich would be unable to lift, carry and/or handle any items, including a briefcase, for a minimum two-month period post- surgery and would not be able to drive a vehicle and/or sit for a prolonged duration for approximately two months post-surgery.

13In his letter of March 9, 2012, Mr. Badrinarayn also requested transcripts, if possible, of the teleconference held on February 14, 2012. He repeated this request in further correspondence dated March 13, 2012.

14The Tribunal is concerned about the lengthy delay requested by the applicant for the summary hearing. The Application was filed in September 2011. At this time, there have been no Responses filed by the respondents because of the Tribunal’s request for a summary hearing. In the event the Application is not dismissed in whole or in part, there will be a significant delay in processing the Application. As noted by Ms. Chilcott, the individual respondents continue to be involved in the Application pending the decision on the summary hearing.

15It is in the interests of all parties that the summary hearing be resolved as soon as possible. It is equally important that the applicant`s counsel be able to attend the summary hearing and he requires a three-month delay in scheduling in order to do so.

Order

16The summary hearing will be scheduled after June 30, 2012, as an accommodation to Mr. Saich. It will be scheduled on the earliest possible date that is available to all parties and the Tribunal.

17It is clear from the correspondence from Mr. Badrinarayan that he and Mr. Saich are able to and have received e-mail correspondence from counsel, including from Mr. Andal, regarding the rescheduling of the summary hearing. Given the number of parties involved in this proceeding, all future delivery of documents can be sent electronically by the parties.

18Finally, there is no transcription of the teleconference on February 14, 2012. The Tribunal does not transcribe its proceedings unless it is required as a form of accommodation. The Tribunal directs the applicant’s representatives to the Tribunal’s Practice Direction on Recording Hearings.