Brackenbury v. Potter, 2013 HRTO 1473

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Larry Brackenbury

Applicant

-and-

Dave Potter and Ken Wilson

Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: August 29, 2013

Citation: 2013 HRTO 1473

Indexed as: Brackenbury v. Potter

WRITTEN SUBMISSIONS

Larry Brackenbury, Applicant

Sharmaine Hall, Counsel

Dave Potter and Ken Wilson, Respondents

Ken Wilson, Representative

Introduction

1This is one of two Applications that were joined by Interim Decision 2010 HRTO 447. The Applications were held in abeyance because of a stay of proceedings against the corporate respondent Priszm LP by its General Partner Priszm Inc. (“Priszm LP”) under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (the “CCAC”). The other of these two Applications has been withdrawn as against the corporate respondent and resolved through settlement as against the personal respondent.

2By order of the Superior Court of Justice, the proceeding under the CCAA was terminated and the corporate respondent was placed into receivership under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 on September 14, 2011.

3The applicant has filed a Request for Order During Proceedings (“RFOP”) requesting that Priszm LP be removed as a respondent and the Application continue against the individual respondents. The individual respondents oppose the applicant’s request to remove the corporate respondent and to continue this Application as against them personally.

4The request to remove Priszm LP as a respondent is granted.

5The applicant alleges that he was harassed by the personal respondents and that their conduct goes beyond their role as employees of the corporate respondent. In accordance with the Tribunal’s decisions in Johnson v. Yorkview Lifecare, 2009 HRTO 1338 and Okunbo v. Nadiscorp Logistics Group, 2010 HRTO 423, the Application will continue as against the remaining personal respondents.

6Having reviewed the remaining allegations going forward, as well as the materials filed in this Application, the Tribunal directs, on its own initiative, that a summary hearing 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.

7Rules 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.

9Having reviewed the Application, it appears that the applicant may be unable to prove discrimination.

10The 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. No witnesses will give evidence during the summary hearing.

11If 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.

12A 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.

13The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at www.hrto.ca.

14I am not seized.