Beni v. Sarnia Police Services Board, 2013 HRTO 450

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tracey Beni

Applicant

-and-

Sarnia Police Services Board

Respondent

DECISION

Adjudicator: Brian Eyolfson

Date: March 18, 2013

Citation: 2013 HRTO 450

Indexed as: Beni v. Sarnia Police Services Board

APPEARANCES

Tracey Beni, Applicant

Peter Mancini and Carrie Venner, Representatives

Sarnia Police Services Board, Respondent

Paula M. Rusak, Counsel

Introduction

1This Application was filed on November 29, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination in employment.

2By Notice of Confirmation of Hearing dated June 20, 2012, the Tribunal confirmed that this matter was scheduled to be heard on March 12, 13, and 14, 2013.

3This Decision confirms that the Tribunal dismissed this Application as abandoned at the hearing on March 12, 2013, as the applicant failed to attend the hearing, although the applicant’s representatives were in attendance.

Background

4On October 28, 2012, the applicant advised that she wished to reschedule the March 12, 13 and 14, 2013 hearing dates. On October 29, 2012, the Tribunal advised the parties that, pursuant to its Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments, where a request to reschedule a hearing is made more than 14 days after a Notice of Confirmation of Hearing, the Tribunal will only reschedule hearings in exceptional circumstances. The Respondent also indicated that it would not consent to an adjournment of the hearing dates. On November 1, 2012, the Tribunal denied the applicant’s adjournment request, and confirmed that the hearing would proceed on March 12, 13 and 14, 2013.

5The parties’ witness lists and statements and documentary materials for the hearing were due on January 28, 2013, as required under Rules 16 and 17 of the Tribunal’s Rules of Procedure. On January 28, 2013, the applicant instead filed a Request for an Order During Proceedings (“RFOP”), seeking deferral of the Application pending an appeal to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). On February 6, 2013, the respondent filed a Response to the applicant’s RFOP, opposing deferral. On February 26, 2013, the Tribunal issued an Interim Decision, 2013 HRTO 329, denying the applicant’s RFOP to defer, and directed the applicant to immediately deliver and file the materials required under Rules 16 and 17.

6On February 27, 2013, the applicant filed materials for the hearing, as well as additional information concerning issues before the Workplace Safety and Insurance Board (“WSIB”) and the WSIAT, in support of her January 28, 2013 RFOP to defer. In correspondence to the Tribunal dated March 7, and copied to the respondent on March 8, 2013, the applicant asked that her RFOP to defer be given further consideration prior to the scheduled hearing. On March 8, 2013, the Tribunal advised the parties that, further to the applicant’s correspondence dated February 27 and March 7, 2013, the hearing in this matter would proceed as scheduled on March 12, 13, and 14, 2013.

DEFERRAL RAISED AT THE HEARING

7At the outset of the hearing on March 12, 2013, the applicant’s representatives advised that it was their understanding that the issue of deferral would be addressed as a preliminary matter at the hearing, but they did not point to any documentation that would support such an understanding. The respondent indicated that it had no notice that the issue of deferral would be raised at the hearing. In any event, the Tribunal heard submissions from the parties on the issue of deferral.

8The Tribunal also raised the issue of whether or not the applicant was asking the Tribunal to reconsider its February 26, 2013 Interim Decision denying deferral, and, if so, whether or not the Tribunal could reconsider its earlier Interim Decision. The Tribunal notes that Rule 26 of the Tribunal’s Rules provides that parties may request reconsideration of final decisions of the Tribunal.

9As I understand the applicant’s materials, and the submissions of her representatives at the hearing, the applicant has one matter that is ready to proceed to the WSIAT, however, a hearing date has not yet been set. This matter relates to an incident where the applicant was called to an apparent accident scene that was later determined to be a possible homicide. I note that there do not appear to be any allegations in the applicant’s Application with the Tribunal that are specific to this incident.

10I also understand that the applicant has two other matters awaiting determination at the WSIB appeal level. These matters relate to a court clerk position that the applicant was transferred to, including the suitability of that position, and one of the issues in this Application is whether or not the applicant’s disability-related needs were accommodated in the court clerk position. As I also understand it, if these latter two matters are denied at the WSIB appeal level, the applicant intends to appeal these matters and have all three of her matters heard concurrently at the WSIAT.

11The applicant’s representatives also confirmed that they were essentially asking the Tribunal to reconsider its February 26, 2013 Interim Decision, and that it would be just to do so, referring to overlapping issues.

12The respondent opposed deferral, and submitted that the applicant has no right to reconsideration of the Tribunal’s earlier Interim Decision. The respondent also questioned the bona fides of the applicant’s request that the Interim Decision denying deferral be reconsidered, noting that the applicant was not present at the hearing.

13After considering the parties’ submissions and materials, the Tribunal determined that, whether or not it could reconsider its earlier Interim Decision denying deferral, there was no basis to vary its earlier Interim Decision. The applicant’s request to defer was again denied at the hearing.

14Deferral is ultimately a discretionary decision. The Tribunal notes that while two of the applicant’s three matters that may proceed to the WSIAT concern the suitability of a court clerk position that the applicant was transferred to, the related issue in this Application of whether or not the applicant’s disability-related needs were accommodated in the court clerk position is just one of a number of issues raised by this Application, as set out in paragraph 5 of the Tribunal’s Interim Decision dated February 26, 2013. In addition, the applicant’s representatives confirmed that no hearing dates at the WSIAT have been set concerning the applicant’s matters, and they are awaiting WSIB appeal decisions in two of the three matters, and intend to have the matters heard concurrently by the WSIAT. On the other hand, the hearing of this Application was scheduled to commence and the respondent was in attendance and prepared to proceed.

ABANDONMENT

15The applicant’s representatives explained at the hearing that the applicant was out of the country attending to her elderly father. They explained that they indicated to the applicant that this matter was proceeding on March 12, 2013, but she felt it was necessary to attend to her father. They did not know when the applicant left the country, but she indicated to them on March 7, 2013 that she was leaving. The applicant’s representatives confirmed that they made the applicant aware of the consequences if she did not attend the hearing.

16The respondent submitted that the applicant’s husband also works with the respondent, and that it understood that the applicant’s husband scheduled vacation months earlier, and that the applicant left on March 8, 2013 with her husband and children to go on March break. The respondent asked that the Tribunal dismiss the Application as abandoned.

17In response to the respondent’s request that the Application be dismissed as abandoned, the applicant’s representatives simply reiterated that the applicant was told that if she did not attend there would be consequences if a deferral was not granted.

18In the circumstances, after hearing submissions from the respondent and the applicant’s representatives, the Tribunal dismissed the Application as abandoned, and indicated that a written Decision would follow.

19This Decision confirms that the Application was dismissed as abandoned at the hearing.