Gurski v. Fort Frances Power Corporation, 2013 HRTO 1985

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sharon Lynn Gurski

Applicant

-and-

Fort Frances Power Corporation and Town of Fort Frances

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: December 2, 2013

Citation: 2013 HRTO 1985

Indexed as: Gurski v. Fort Frances Power Corporation

WRITTEN SUBMISSIONS

Sharon Gurski, Applicant Holly Walbourne, Counsel

Fort Frances Power Corporation and Town of Fort Frances, Respondents Sarah C. Crossley, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal, poisoned environment and discrimination with respect to employment because of disability, sex and gender identity. It would appear that the applicant feels the termination of her employment was reprisal for having taken a medical leave in the month prior to that termination. The allegations of poisoned environment and discrimination related to her sex and gender identity arise from her co-worker’s alleged comments and behaviour relating to her sex.

background

2The applicant filed a Request for Order During Proceedings (“the RFOP”) seeking to amend her Application to remove all references to damages for dismissal or to events after her dismissal, and to add the Town of Fort Frances as a respondent from whom she seeks the public interest remedies listed in her Application: amended policies to deal with complaints, and human rights training for management. The applicant explained in her submissions that the reason for her seeking the removal of the above references is that she recently became aware of “other causes of action that fall outside of the jurisdiction of the Human Rights Tribunal” and she did not want to risk not being able to pursue them in the Superior Court of Justice for jurisdictional reasons.

3The respondents did not respond to the RFOP within the time limits provided for in the Tribunal’s Rules.

4On October 7, 2013, the Tribunal issued an Interim Decision, 2013 HRTO 1688, (“the Interim Decision”) granting the RFOP to remove references to damages for dismissal and events after dismissal, but the Tribunal did so without any comment on the possible effects of the amendment, and without prejudice to any right of a respondent to seek dismissal of the Application on the basis that it becomes barred pursuant to s.34(11) of the Code.

5The Interim Decision directed that the Tribunal would address at the hearing that part of the RFOP that requests to add the Town of Fort Frances as a respondent from whom the applicant seeks public interest remedies.

request for an extension of time

6On October 8, 2013, the day after the RFOP was granted by way of the Interim Decision, the respondents filed a request for an extension of time to respond to the RFOP on the basis that the respondents had not read the RFOP delivered to them by the applicant because the respondents’ counsel’s spam filter blocked it. The Tribunal’s Registrar wrote to the parties to say that the respondents’ request for an extension of time was granted. The Registrar’s correspondence was issued in error given that the Interim Decision had already made a decision on the RFOP.

7In the circumstances the Tribunal on its own initiative will entertain the respondents’ submissions without requiring that they seek reconsideration of the Interim Decision. In my view, the circumstances are analogous to a failure of the respondents receiving Notice, one of the factors that may cause the Tribunal to reconsider a decision set out in Rule 26.5 (b).

8Having reviewed the respondents’ submissions, my conclusions reached in the Interim Decision remain the same.

reasons

9The respondents argue that the applicant has only made the requests so as to be able to pursue the circumstances surrounding her employment in multiple forums, and expose the respondents to duplicative proceedings which would amount to an abuse of process. But the respondents have not pointed to any other proceeding that has actually been commenced by the applicant, and I see no reason to change my decision on the basis of what the applicant might do in the future. The cases the respondents cite where the Tribunal dismissed applications under s.45.1 of the Code or as abuses of process involve circumstances where the applicants had litigated similar facts elsewhere and failed to raise human rights issues. (See Cunningham v. CUPE 4400, 2011 HRTO 658; Asiamah v. Olymel S.E.C./L.P., 2009 HRTO 1750; Blanchette v. Ontario (Ministry of Natural Resources), 2010 HRTO 2280; and Campbell (Litigation Guardian Of) v. Toronto District School Board, 2008 HRTO 62). I fail to see the prejudice to the respondents or the possible abuse of this Tribunal’s process at this stage. If the applicant does pursue a claim in court the respondents may raise s.34(11) of the Code here, and/or they may argue abuse of process before the court.

10The respondents also argue that if the amendment were granted, then the Application should be dismissed as it does not establish a prima facie case. It would appear that the respondents have misinterpreted the RFOP as requesting the removal of any reference to the termination of the applicant’s employment, which may indeed put into question whether an allegation of reprisal or discrimination because of disability may survive. However, the RFOP instead requests the removal of references to damages for the termination, and it does not request the removal of references to public interest remedies for the termination that the applicant continues to seek. Consequently, the allegations of reprisal and discrimination because of disability continue in the amended Application, and I am not prepared to accept, prior to the hearing, that there is no prima facie case with respect to those allegations. Furthermore, I am not prepared to accept that there is no prima facie case with respect to the applicant’s continuing allegations of poisoned environment and discrimination because of sex in the context of the time when she was working. The respondents may argue, if they choose to do so, that the applicant has not established a prima facie case after the applicant has entered her evidence at the hearing.

order

11Having reconsidered the decision in 2013 HRTO 1688 I come to the same conclusion; the applicant’s request to amend the Application with respect to the removal of references to damages for dismissal or events after her dismissal is granted.

next step

12The next step remains the scheduling of the hearing.