King v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, 2013 HRTO 1411

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard King

Applicant

-and-

Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: August 16, 2013

Citation: 2013 HRTO 1411

Indexed as: King v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America

WRITTEN SUBMISSIONS

Richard King, Applicant

Self-represented

Carpenters And Allied Workers Local 27, United Brotherhood of Carpenters And Joiners of America, Respondent

, Counsel

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 because of race, colour and reprisal.

2In its Response (Form 2) the respondent requested that this Application be dismissed on a number of bases outlined below.

3The applicant has also filed a Request for Reconsideration of the dismissal of a previous Request to Expedite the hearing of this case.

4The respondent has filed a Request for Summary Hearing (Form 26). The applicant has filed a response to the Request.

5The Request for Reconsideration is denied. Reconsideration is only available for final decisions of the Tribunal. A denial of a Request to Expedite is not in these circumstances a final decision. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34.

6Having reviewed the file including the Application, the Response of the respondent as well the other materials filed, the Tribunal directs on its own initiative that a summary hearing be held by telephone conference call to determine whether this Application should be dismissed in whole or in part because it has no reasonable of success.

7The Rules 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.

8Details 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.

9First, it appears that some of the allegations may be untimely. Section 34 (1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) read as follows:

(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.

The parties may make submissions on whether the Application is outside the Tribunal’s jurisdiction for this reason.

10Second the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application, it appears that the applicant may be unable to prove a link to the ground or grounds alleged.

11Finally the reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. See Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the allegations of reprisal, there must be a reasonable basis to believe that the applicant could establish such intention and a link between the grounds cited and the respondent’s alleged actions. It is not clear that the applicant will be able to do so in this case

12The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary 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 establish a link between the grounds alleged and the respondent’s alleged actions. The applicant will also be required to address the delay issues and point to the evidence which would establish reprisal. No witnesses will give evidence during the summary hearing.

13If 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. The Application may be dismissed in whole or in part.

14A 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.

15The 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

16The 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.

17I am not seized.