Johnson v. Ontario (Government Services), 2013 HRTO 19

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dale Johnson

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services

Respondent

interim DECISION

Adjudicator: Judith Hinchman

Date: January 4, 2013

Citation: 2013 HRTO 19

Indexed as: Johnson v. Ontario (Government Services)

APPEARANCES

Dale Johnson, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services, Respondent

Jennifer Richards, Counsel

Introduction

1The applicant filed an Application with the Tribunal under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability, age, and reprisal.

2By Case Assessment Direction (“CAD”) dated September 15, 2011, on its own initiative the Tribunal directed that a summary hearing be held in this matter by teleconference. The CAD stated as follows in paragraphs 4 through 6:

The Tribunal does not have the general power to deal with allegations of unfairness, personal harassment, or violations of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. It can only deal with alleged discrimination or harassment on the grounds set out in the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). To succeed in an Application, an applicant must be able to prove, on a balance of probabilities, 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 such a link.

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 Application, there must be a reasonable basis to believe that the applicant could establish such intention and a link to the respondent’s alleged actions.

The Tribunal’s 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 prove a link between the respondent’s actions and the grounds cited.

3The CAD also directed the parties to 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.

ADJOURNMENT

4Following the CAD, a teleconference summary hearing was scheduled for early 2012. This was adjourned following a request by the respondent. The Tribunal adjourned two later scheduled dates of April 20 and August 17 following medical requests by the applicant. The summary hearing was rescheduled for November 28, 2012 (the “Summary Hearing”). On November 26, two days prior to the Summary Hearing, the applicant requested another adjournment stating that prior surgeries had rendered her unable to walk for periods of time so that she needed an extension of time to obtain additional documents necessary to support her request for damages if her Application succeeded. The respondent objected to the adjournment request.

5The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments provides that requests to reschedule must be made within 14 days of receiving the Confirmation of Hearing and that outside that time, adjournments will be granted only in extraordinary circumstances. Accordingly, the Tribunal grants adjournment sparingly and the consent of the other party does not guarantee that a request to reschedule a hearing date will be granted. The Tribunal’s Information Bulletin on Scheduling of Hearings and Mediation, Rescheduling Requests, and Requests for Adjournments points out that “Requests for adjournment, particularly last minute requests for adjournments are a significant impediment to fair and timely access to justice.” In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4, the Tribunal stated:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only in the interests of the parties to the particular proceeding, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used. For that reason, among others, the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five [now fourteen] days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel’s availability with these broader interests by requiring that a party advise within five [now fourteen] days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

6The applicant submitted that her request for adjournment was to obtain documents concerning damages that were unrelated to the question before me at the Summary Hearing of whether or not the Application has a reasonable prospect of success. I therefore was not satisfied the applicant had established exceptional circumstances to justify the granting of an adjournment. The request was denied and the parties were directed that any further requests would be dealt with during the Summary Hearing.

7The Summary Hearing was held by a telephone conference on November 28, 2012. In the conference call I heard from the applicant and the respondent.

ANALYSIS

Summary Hearings

8The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. In a summary hearing the issue is whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or a part thereof will succeed.

9In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

Background

10The applicant began work as a Human Resources Business Advisor with the Strategic Business Unit, Ministry of the Environment in April 2009. “The Director” led the Business Unit. During her employment the applicant reported to two managers, the “First Manager” during August and September 2010 and later the “Second Manager”. During the interim between the First and Second Managers, the Director filled in as manager. By letter dated July 27, 2010, citing performance issues during a 12-month probationary period, the applicant’s employment was terminated.

11In her Application, the applicant alleges that she suffered discrimination based on disability, age, and reprisal. Based on the Application, the relevant provisions of the Code are as follows:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

12With respect to reprisals, the Code states:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

13Code section 10 defines “age” to mean 18 years or more and “disability” is defined to mean:

Any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device.

14The Code states further “[t]he right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or have had a disability.”

15Section 10 of the Code defines “harassment” to mean “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”

Family Status

16The applicant did not check family status on her Application as an alleged ground of discrimination and did not allege any facts in her Application that would lead to a conclusion that she was alleging this ground. In the Summary Hearing the applicant stated that she wished to add this ground to her Application. She stated that at the job interview and on either the first or second day of work the First Manager asked her how many children she had and if she was married or divorced. She stated that there were no further comments, conversations, or disparaging remarks on these topics, and that she did not report this as harassment at any time to the Director or anyone else. However, she submits the question was inappropriate.

17The applicant has not filed a Request to amend her Application and the issue was not before me at the Summary Hearing. Nonetheless, even if the Tribunal were to allow this ground to be added on amendment, as discussed below in my view the applicant would have no reasonable prospect of success on this ground.

Age

18The applicant submits that she was 59 years of age when she filed her Application. At the Summary Hearing the applicant submitted that when she began her job she wanted “inside” information about her clients to help her get started. This background information was only available on the Business Unit computer database, which required certain access that she did not have. She first asked the Director for this type of access, which she characterized as a form of “mentoring”, and he told her he was too busy, which she stated she understood. He told her to check with her manager. The applicant alleges that when she asked the First Manager for this computer access and client orientation, which she submits is a form of mentoring, he told her that he was only comfortable mentoring younger people. The applicant later stated in the Summary Hearing that both the Director and the First Manager told her that they were happy with the way computer files were being accessed.

19The applicant also alleges that she was given different assignments than others. She did not, however, identify any particulars with respect to her allegation that she received different assignments. For example, she did not identify what she alleged was different about the assignments she received, and, if they were different, why she believed she was given these assignments on the basis of age; neither did she allege how these assignments amounted to adverse treatment.

20At the Summary Hearing the applicant submitted that later, when the Director asked her about the First Manager, she told him about the mentoring comment and his response was to remove the First Manager as her supervisor and transfer him to another location.

21Eventually the First Manager was replaced by the Second Manager, who, the applicant submits, was confrontational with her by, for example, often cutting her off in meetings with comments such as, “why did you say that?” She submits that when she asked for assistance he would say “with your background, your experience, you should know that.” She felt this was disrespectful but she stated she guessed he was busy. The applicant submits that they were not bonding, he was not supportive, and that he never offered her help or support. She submits that he appeared to have a better relationship with two other employees, identified here as “colleague #1” and “colleague #2”. For example, the applicant alleges that colleague #1 was taken to meetings that she was excluded from and asked to act for the manager when he was away.

22The applicant also submitted at the Summary Hearing that a consultant hired by the Second Manager to lead a two-day seminar on workplace conflict insulted her at the lunch break on the first day by telling her that he had been to counselling and asking her if she had been to counselling. She alleges that on the second day he asked her what she thought of the seminar and then asked “how old are you anyway?” She does not allege that she complained about this to her employer.

23At the Summary Hearing the applicant also alleged that the application for employment was rigged to be easy enough that colleague #2 could be hired. The applicant scored the highest and was hired first, but then later, on the basis of this application, colleague #2 was also hired. The applicant suggested that the easier application was meant to make it easy for colleague #2 to be hired and suggested that this supported age discrimination.

Disability

24In her Application, the applicant alleges that the respondent perceived she had a disability because she lacked a university degree and lacked knowledge of branch and ministry human resources history.

25In the Summary Hearing the applicant submitted that on her second day of work, during lunch, colleague #1 asked everyone present to recite where they went to school and what degrees they had earned. The applicant felt embarrassed and felt that thereafter she was viewed as intellectually disabled. She submits that others including the Director and the Second Manager cut her off when she spoke, were confrontational, and eventually stopped communicating with her. She felt deficient and that her work was not respected or accepted. She felt that the Director, the Second Manager, and colleague #1 treated her as if she was intellectually disabled.

26She stated, however, that her education credentials were on her job application and were known to the respondent before she was hired. And as well she alleged that the Director treated some other staff members the same way – ignoring them and being rude.

Harassment and Poisoned Work Environment

27In her Application the applicant alleges that she was blamed for workplace issues, bullied, left out of the loop, gossiped about viciously, not given adequate access to appropriate client background, subjected to constantly changing work requests by the Director, and shown a lack of respect by him and other management. The applicant felt humiliated, isolated, and as discussed earlier felt she had limited assistance or information to be able to do her job.

28At the Summary Hearing the applicant submitted that in September 2009 she overheard a co-worker speaking about her and saw funny faces. She also believes that colleague #1 gossiped and joked about other staff and that she was excluded from these conversations. The applicant stated that she did not actually hear the jokes as doors were closed; she just heard laughing. She stated that she complained to the First Manager and told him she was new and did not know what was happening, and that he told her that the Director protected colleague #1. She alleges that the First Manager also was a gossip and that she did not trust him so she did not tell him about any alleged discrimination.

29She also submits that appointments with the Director were often cancelled and that when she needed to see him it was generally after hours. This happened to others as well and she speculated that it was based on the type of work the Director wanted to keep an eye on, although she stated she did not actually know. She also submitted that she asked the Director for dispute resolution training but that he did not follow up and she was too embarrassed to ask again.

30The applicant described the workplace as a pressure cooker, not professional, and infantile. The workload was very heavy and the Director made inconsistent requests. She also submits that the Director would sometimes tell her that her work quality was excellent and then later yell and shut her down. If, for example, she was behind on an assignment deadline, he would shout “I don’t want any more excuses”. The applicant alleges that the Director screamed during meetings, was often hostile, angered easily, and that he was this way with others too. She stated that she thought he was angry, erratic, intimidating, and wanted to control everybody to the point that he stifled staff. However, she stated that he would generally apologize following any outburst.

31The applicant also alleges that the Second Manager was a micro-manager.

32The applicant stated that the Director showed extreme favouritism to colleague #1, who herself was often rude, manipulative and uncooperative. The applicant describes her as a competitor rather than a colleague. She feels that this sabotage eventually led to her termination.

Reprisal

33In her Application, the applicant alleges that she spoke to the First Manager and the Director three times about issues with co-workers and management that are identified above and that after that pressure escalated. For example, the applicant submits that in November 2009 the Director came to her office to ask for her thoughts on the others. She submits that she told him the office was dysfunctional, she was pushed by her manager, suffered from gossip, and was excluded. She told him this was bullying. She also told him about the First Manager’s comment about not mentoring her. The Director thanked her and, as noted earlier, she reported that he thereafter reassigned the First Manager.

34The applicant submits that in February 2010 she again told the Director that she was not getting along with her office mates and she asked him what she should do. She submits that while she believes the problems with her colleagues were due to age discrimination she did not share this with the Director. She submits that in her March 2010 performance review, the Director told her that that she must get along with her colleagues.

35At the Summary Hearing the applicant also alleged that in late March, the Director asked her for feedback on how he could be a better manager, which she provided to him in a note on April 5, 2010. The applicant submits that after she provided that note, which also included her observations about office dynamics, the Director became more demanding and she could not get in to see him. She alleges that he stated approximately four times in staff meetings that some staff would not be there next year and she felt targeted by this. Thus she alleges the termination was a reprisal for her complaints.

36The applicant submits that the reasons listed in the termination letter and the references to performance issues are a pretext. She submits that she asked for written performance reviews but never saw any. She did recall verbal performance review meetings, however, and felt these were not positive, helpful or productive. However, during the Summary Hearing the applicant stated that she did not raise Code-based issues during her performance reviews, nor did she complain to her managers about Code-based discrimination other than her reporting to the Director the First Manager’s one comment.

Analysis

37Although the respondent may dispute some or all of the applicant’s allegations, it has not yet been required to file a Response to the Application. Accordingly, in determining whether the Application has no reasonable prospect of success, I have considered only the facts as asserted by the applicant. Importantly, while I have assumed the applicant’s allegations to be true for the purposes of this summary hearing, at this stage they remain unproven allegations. Additionally, two hours before the scheduled Summary Hearing, the applicant by email stated that she also needed time to obtain other additional documents. I have also considered whether any of these documents would affect whether or not the Application or any part of it has a reasonable prospect of success.

38In determining whether an Application has a reasonable prospect of success, an application must contain sufficient facts that, if accepted as true, could reasonably lead to a finding of discrimination. Otherwise, an application has no reasonable prospect of success at a hearing and will be dismissed. See Macyshyn v. Toronto Catholic District School Board, 2011 HRTO 1068, Gazsi v. Cascades Recovery Inc., 2012 HRTO 1899. With respect to allegations of unfairness in a workplace setting, in Barker v. Ontario (Community and Social Services), 2010 HRTO 703 at para. 5, the Tribunal stated:

The Tribunal does not have a general power to decide whether the respondent treated the applicant fairly or appropriately. … [W]hile the applicant has clearly stated he feels mistreated by the respondent, to fall within the Tribunal’s jurisdiction…he must also explain how this alleged mistreatment related to a ground and social area under the Code.

Family Status

39Looking first at the additional ground of family status raised at the Summary Hearing, the applicant has not linked the alleged questions during the interview with any differential treatment during the hiring process or after she was hired. And has in fact stated that she felt no further treatment resulted from the alleged questions. I am not satisfied that even if the Tribunal permitted the applicant to amend her Application to add family status in the context of these alleged questions, that the applicant has any reasonable prospect of establishing that the alleged questions amount to a violation under Part I of the Code.

Age

40With respect to alleged discrimination based on age, the applicant has not linked the First Manager’s alleged statement that he was only comfortable mentoring younger people with the respondent’s refusal to allow her access to information on the computer database regarding her clients or alleged that other younger staff members were permitted access to that information. See Kostiuk v. Ottawa (City), 2011 HRTO 16 at para. 10:

The Code is not designed to remedy all instances of differential treatment, bullying or interference in one’s public affairs. The alleged treatment must be linked in a substantive way to a Code ground.

41I am not satisfied that even if computer file access was limited for some staff including the applicant, there is a reasonable prospect that the applicant could show that the alleged comment by the First Manager or the applicant’s age is linked to that access.

42The allegation that others were asked to assume an acting manager role from time to time is not evidence that other younger staff were mentored when she was not or that she was not considered due to her age. And she has not alleged that she asked to be considered for the acting manager role and was refused.

43On the other hand, the alleged comment by the First Manager, that he was only comfortable mentoring younger people, on its face may support a Code violation. The applicant alleges that she was concerned enough about the comment to report it to the Director.

44A decision by the Tribunal to allow part of an Application to proceed after a summary hearing does not mean that that part of the Application will succeed. It only means that the Tribunal is satisfied that there are allegations that, if proven, could result in a finding of a Code infringement and that the allegations are sufficiently plausible that it cannot be said that there is no reasonable prospect that the applicant could prove it. Rule 19 A.6 provides that where the Tribunal decides not to dismiss an Application or part of it following a summary hearing, it need not give reasons.

45In my view, if proven, the applicant’s allegation that the First Manager stated to her that he was only comfortable mentoring younger people could result in a finding that the applicant’s Code-protected rights were infringed. I am also satisfied that this allegation is sufficiently plausible that it cannot be said that there is no reasonable prospect that this part of the Application could succeed.

The Consultant Comment

46I my view even if the consultant asked the applicant how old she was this would not reasonably support a Code violation. She does not allege that any differential treatment resulted in the workplace or that she advised or complained to the employer about the alleged question.

The “Easy Application”

47The applicant alleges that the job application given to both her and colleague #2 was purposely devised to be easy enough so that colleague #2, who she alleges is younger than she, could be hired. However, the applicant also submits that after both completed this application it was she who was hired rather than colleague #2. Colleague #2 was only hired later when another opening developed. In my view this turn of events, even if the applicant can prove that the application was purposely written to be easy enough for colleague #2 to pass, does not support age discrimination. She was in fact hired first and I find that the applicant has no reasonable prospect to link the relative difficulty of the job application to age.

Disability

48With respect to discrimination based on a perception of disability, the applicant stated that her educational background was in her job application, which the respondent knew prior to hiring her. She has not alleged that comments were made about her education. The allegation that she was perceived to have an intellectual disability is highly speculative and in my view, based on the applicant’s proposed evidence, she has no reasonable prospect of establishing a link between her education background and the Code ground of disability or that any of the conduct she described was on the basis of perceived disability. Additionally, I find that the applicant has no reasonable prospect of establishing that the conduct described, particularly the discussion about university backgrounds, amounted to adverse treatment capable of giving rise to a finding of a Code violation. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

Harassment and Poisoned Work Environment

49With respect to the allegations of a poisoned workplace, the applicant has not particularized the nature of the gossip that she claims she faced or the lack of cooperation, and her claims that gossip and non-cooperation were based on her age or a perception that she was intellectually disabled is speculative. With respect to being isolated from jokes, the applicant submitted that she did not hear the content of the alleged jokes. She only alleges that she was excluded in that the jokes were not shared with her. The applicant alleges that in general the workplace was dysfunctional and a pressure cooker. She has not specifically linked any alleged harassment from her colleagues to a prohibited Code ground. The applicant makes only a bald assertion that she was discriminated against due to her age or a perception that she was intellectually disabled. I find she has no reasonable prospect of establishing the alleged conduct had any link to a prohibited Code ground.

50With respect to the Director’s management style, including yelling, cancelling meetings, and being rude, the applicant submits that he treated others similarly. The alleged evidence therefore does not reasonably support differential treatment and at the most if accepted would support that the applicant as well as others were not treated appropriately. With respect to the allegation that the Director did not respond to the applicant’s request for dispute resolution training, the applicant has not linked that lack of response to a Code ground or suggested that anyone else was given this training. The applicant has not provided any particulars to link the Director’s alleged extreme favouritism to another colleague to any Code-related ground or to her termination.

51The applicant’s allegations, even if accepted, do not explain how the general atmosphere in the workplace and management styles relate to the alleged Code grounds. I find that these allegations have no reasonable prospect of success.

Reprisal

52With respect to reprisal, the applicant does not allege or suggest in her Application that when she told the Director that the First Manager told her he would only mentor younger people, she faced any reprisal. To the contrary she submits that the Director removed the First Manager from his managerial duties and reassigned him shortly thereafter.

53The applicant does allege that after her April 5th note, she faced reprisal and eventual termination. However, the applicant has stated that while she told the Director she felt bullied, she did not raise issues of Code-related discrimination in her meetings him or in her April 5th note that contained her feedback on management style. The applicant does not allege therefore that the termination and increased workload were related to her attempting to enforce a Code right or that the respondent intended to retaliate for an attempt to enforce a Code right. See Noble v. York University, 2010 HRTO 878 at para. 33. On the contrary, she alleges that the reprisal followed her feedback on management style and office dynamics to the Director and the First Manager. The applicant stated that she did not complain to the Second Manager about any discrimination because she did not trust him. In my view, even if the applicant’s allegations that the workplace became more difficult and the Director’s alleged behaviour towards her escalated following her complaints about the workplace dynamic or managerial style, the applicant has no reasonable prospect of establishing it was in response to an attempt to enforce a Code right, let alone that it was intentional retaliation for any such attempt.

CONCLUSION

54I do not doubt the applicant’s sincere belief that she was mistreated; however, even if I accept the applicant’s allegations, with the exception of the alleged mentoring comment by the First Manager, the other allegations relate to concerns with workplace issues and management styles, which the applicant has not linked and has no reasonable prospect of linking with Code grounds.

55With respect to that part of the Application alleging that the First Manager stated to the applicant that he was only comfortable mentoring younger people, that part of the Application should not be dismissed on the grounds that there is no reasonable prospect of success.

56With respect to all other parts of the Application, the applicant has not alleged any facts even if accepted as true that she was treated differently because of her age or an actual or perceived disability within the meaning of the Code, or that she faced reprisals for enforcing her Code rights. Accordingly, other than the alleged mentoring comment, there is no reasonable prospect that the rest of the Application will succeed and thus other than the alleged mentoring comment, all other parts of the Application are dismissed.

57The Tribunal will continue to process only the part of the Application relating to the alleged mentoring comment and the respondent is directed to file a Response within 35 days of this Interim Decision. All other parts of the Application are dismissed.

58I am not seized of this matter.