Pak v. Toronto (City), 2013 HRTO 1835

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Victor Pak

Applicant

-and-

City of Toronto and John Janson

Respondents

-and-

Toronto Civic Employees Union, Local 416

Intervenor

A N D B E T W E E N:

Richard Vella

Applicant

-and-

City of Toronto, Stewart Morris and John Janson

Respondents

-and-

Toronto Civic Employees Union, Local 416

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: October 31, 2013

Citation: 2013 HRTO 1835

Indexed as: Pak v. Toronto (City)

WRITTEN SUBMISSIONS

Victor Pak, Applicant ) Self-represented

Richard Vella, Applicant ) Self-represented

City of Toronto, Stewart Morris ) Zoya Trofimenko, Counsel and John Janson, Respondents )

Toronto Civic Employees Union, ) Devon M. Paul, Counsel Local 416, Intervenor )

1These consolidated Applications were deferred by way of Interim Decision 2012 HRTO 720 on April 11, 2012. The Interim Decision ordered deferral because there are outstanding grievances dealing with the allegations raised in the Applications with respect to payroll issues and letters of reprimand.

2On September 27, 2013, the applicants filed requests to reactivate the Applications on the basis of that the parties entered into minutes of settlement in September 2012 regarding the payroll grievance and that the letter of reprimand grievance was deemed resolved by the union in August 2013.

3On October 22, 2013, the respondents filed responses opposing the reactivation request. The respondents ask that the Tribunal deny the reactivation request because the Applications should be dismissed for delay, pursuant to section 45.1 of the Code and/or for abuse of process, and no reasonable prospect of success. In the alternative, the respondents argue that the personal respondents should be removed from the proceedings and that certain allegations should be struck because of delay.

4The Union takes no position with respect to the reactivation request.

Reactivation

5The Tribunal deferred the Applications pending the conclusion of two grievances, one involving payroll issues and the second challenging letters of reprimand. It appears that these grievances are no longer active and grievance proceedings are now concluded.

6The respondents oppose reactivation for various reasons related to delay, the prima facie merits of the Applications, section 45.1 of the Code and abuse of process.

7The grievance processes are concluded and, as such, there is no basis to continue to defer these Applications. The respondents’ concerns will be considered as part of preliminary hearing.

8The Applications are reactivated.

Preliminary Issues

9Having reviewed the parties’ submissions, the Tribunal notes that there are various preliminary issues that need to be considered in order to determine whether the Applications should be dismissed, in whole or in part, on the basis of (i) delay; (ii) section 45.1 of the Code; (iii) abuse of process and/or (iv) because there is no reasonable prospect that the Applications or part of the Applications will succeed.

10The parties will be given an opportunity to file written submissions and make oral submissions regarding the various preliminary issues.

Delay

11First, it appears that some or all of the allegations may be untimely. Section 34(1) of 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.

12In examining potential delay, the Tribunal must first determine whether the application was filed more than a year after the incident, or the last incident in a series of incidents, of alleged discrimination. If the application was filed beyond the one-year timeline, the Tribunal must be satisfied that a.) the delay was incurred in good faith and, if so, b.) no substantial prejudice will result to any person affected by the delay: see, Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

13The Tribunal has found any alleged continuing effect flowing from the earlier discriminatory events does not extend the Code’s section 34(1) timeline: see, Mafinezam v. University of Toronto, 2010 HRTO 1495. Also, to allow an applicant to revive an out of time claim by simply restating old concerns would undermine the purpose of section 34 of the Code: see, Seetharam v. Iogen, 2010 HRTO 1811.

Section 45.1/Abuse of Process

14Second, there is an issue of whether or not the Applications may be dismissed because of section 45.1 of the Code and/or abuse of process.

15It appears that some of the allegations and events described in the Applications may come within the ambit of section 45.1 of the Code. Section 45.1 provides that the Tribunal may dismiss an application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application. Alternatively, it appears the Application may constitute an abuse of process because the allegations pertain to matters addressed in other proceedings. See for example, Hunter v. Farlake Dairy, 2011 HRTO 1906.

Summary Hearing

16Third, 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.

17Rules 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.

18Details 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.

19The Tribunal has also held 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.

20The Registrar will schedule an in-person one day preliminary hearing. The applicants will proceed first during this preliminary hearing. The applicants shall make argument about why the Application should not be dismissed on the basis of lack of jurisdiction due to delay; section 45.1; abuse of process; and/or on the basis that there is no reasonable prospect that the Applications, or parts of the Applications, will succeed, and point to the evidence on which the applicants will establish a link between the Code and the respondents’ alleged actions.

21No witnesses will give evidence regarding the issue of no reasonable prospect of success.

22If the Tribunal determines that the Applications are out of time, appropriately dealt with under section 45.1 of the Code, constitute an abuse of process or have no reasonable prospect of success, the Applications will be dismissed. If the Tribunal does not find that the Applications should be dismissed under Rule 19A or for any other reason, the Applications will continue in the Tribunal process. The Applications may be dismissed in whole or in part.

23A Notice of Preliminary 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 hearing.

24The 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

25The Registrar will schedule an in-person one day preliminary hearing. The parties shall make argument about why the Application should, or should not be dismissed, because of: delay; pursuant to section 45.1 of the Code and/or abuse of process; and for no reasonable prospect of success in relation to discrimination and/or reprisal within the meaning of the Code.

26The 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.

27I am not seized.