Johnson v. Alcohol and Gaming Commission of Ontario, 2013 HRTO 471

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Coral Johnson Applicant

-and-

Alcohol and Gaming Commission of Ontario, Heather Maclean, Jean Major, David Chiacchia, Michael Falconi, Sukhi Grewal, Laura Fees, Suchitra Hari and Teresa Tedesco Respondents

-and-

Ontario Public Service Employees’ Union Intervenor

DECISION

Adjudicator: Brian Eyolfson Date: March 19, 2013 Citation: 2013 HRTO 471 Indexed as: Johnson v. Alcohol and Gaming Commission of Ontario

APPEARANCES

Coral Johnson, Applicant John Villella, Representative

Alcohol and Gaming Commission of Ontario, Heather Maclean, Jean Major, David Chiacchia, Michael Falconi, Sukhi Grewal, Laura Fees, Suchitra Hari and Teresa Tedesco, Respondents Kimberly D. Pepper, Counsel

Ontario Public Service Employees’ Union, Intervener No one appearing

Introduction

1This Application was filed on April 21, 2010, under s. 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 on the basis of ethnic origin, disability, sex, and reprisal. The Application names her employer, the Alcohol and Gaming Commission of Ontario (the “AGCO”), and eight individuals as respondents.

2This Decision follows a summary hearing.

The Application

3In her Application, the applicant alleges that she complained about workplace discrimination and harassment, and that false allegations were instead raised against her, which resulted in her transfer to an administrative staff position in 2006. The applicant alleges that she was not allowed to remain in that position.

4The Application also includes allegations arising out of a mediation that the applicant attended on April 21, 2009, at the Ontario Labour Relations Board (the “OLRB”), concerning an application that the applicant filed under s. 50(1) of the Occupational Health and Safety Act, R.S.O. 1990, c. O-1, as amended (the “OHSA”), alleging reprisal and naming her employer as a responding party. The applicant explains that the mediation was conducted by an OLRB Labour Relations Officer (“LRO”), with the parties remaining in separate rooms. The Application includes allegations relating to settlement discussions at mediation, and subsequently, that were conveyed to the parties through the mediator.

5More particularly, the applicant alleges that she was advised at mediation that her former administrative position no longer existed, and she was offered a mail clerk position, but advised that “women don’t like to do that job.” The applicant alleges that she accepted the mail clerk position and agreed to have her doctor review the job specifications and provide a medical report. She alleges that her employer was to provide the job specifications to the mediator to forward to her, but that she was instead advised by the OLRB on April 27, 2009 that her employer requested that a hearing be scheduled. The applicant also alleges that her former administrative position does exist and is occupied by another person.

6The applicant indicated in her Application that the facts of the Application were part of another proceeding that is now completed, and included with her Application a decision of the OLRB dated July 8, 2009, dismissing two applications that the applicant filed under s. 50(1) of the OHSA.

The respondents’ Response

7In their Response to the Application, the respondents submit that the applicant commenced a sick leave on March 14, 2006, and has not returned to work. They submit that the applicant is trying to raise matters initially alleged as a health and safety matter under the OHSA, including a matter that occurred almost five years earlier that the applicant now says is discrimination and harassment. They request that the Application be dismissed, pursuant to s. 45.1 of the Code, on the basis that the OLRB appropriately dealt with the substance of the Application.

8The respondents also submit that the applicant has not pled a prima facie case of discrimination, and, in particular, they submit that there is no prima facie case pled against any of the individual respondents, and the Application should be dismissed as against them on this basis. They also deny that there has been any discrimination, harassment or reprisal, and submit that the allegations are frivolous, vexatious and false.

9The respondents also submit that a portion of the Application arises out of an OLRB mediation, and refers to privileged and confidential mediation offers made in the course of OLRB proceedings. They submit that any reference to, or details of, offers at mediation should be struck from the Application. The AGCO and its representatives also deny making any discriminatory comment at mediation, and, referring to provisions of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (the “LRA”), the respondents submit that the mediator cannot be compelled as a witness, nor can his notes be produced. The respondents appear to refer to s. 119(2) of the LRA which provides that, “No information or material furnished to or received by a conciliation officer or a mediator, (a) under this Act… shall be disclosed…” They submit that the mediator was appointed under s. 50 of the OHSA, in accordance with the LRA. The respondents submit, therefore, that the portion of the Application relating to an alleged comment at mediation cannot be proven.

10The AGCO and its representatives also deny making a job offer at mediation as alleged. The respondents submit that, at the conclusion of the mediation, it was the AGCO’s understanding that the applicant intended to send a letter to the AGCO formally requesting a return to work, and providing medical documentation from her doctor authorizing a return to work. She was also to provide confirmation that she had not been working elsewhere between March 8, 2006 and April 21, 2009. The respondents submit that applicant did not submit a request to return to work, nor did she provide any medical documentation authorizing a return to work.

Procedural background

11In an earlier Interim Decision dated September 24, 2010, 2010 HRTO 1948, the Tribunal determined that is was appropriate to hear submissions as to whether or not some or all of the Application can proceed because the events upon which the Application is based may be protected by mediation privilege and confidentiality. The Tribunal directed that a preliminary hearing by teleconference be scheduled to hear the parties’ submissions.

12After the preliminary hearing was held, the Tribunal issued a Case Assessment Direction dated October 31, 2011, providing further directions in this matter. The Tribunal indicated that, having reviewed the parties’ materials and submissions, it was not able to finally determine whether or not some, or all, of the Application may not proceed for reasons related to mediation or settlement privilege and confidentiality. The Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed as against any or all of the respondents. The Tribunal also directed the parties to be prepared to address the following issues at the summary hearing:

a. Whether or not the Application should be dismissed, in whole or in part, pursuant to section 45.1 of the Code, and/or whether or not the Application is an abuse of process;

b. Whether or not the Application should be dismissed, in whole or in part, on the basis of delay, within the meaning of section 34 of the Code; and,

c. Whether or not some, or all, of the Application may be barred for reasons related to mediation or settlement privilege and confidentiality, and, in particular, whether or not common law settlement privilege may apply in the circumstances.

13By Case Assessment Direction dated March 16, 2012, the Tribunal granted the applicant’s request that the summary hearing be rescheduled.

14The summary hearing was held on June 8, 2012. At the end of the summary hearing, the Tribunal set a schedule for the applicant to provide the respondents and the Tribunal with copies of cases referred to at the summary hearing, for the respondents to provide additional submissions in writing, and for the applicant to provide written reply submissions.

DELAY

15At the summary hearing, the applicant submitted that the issues in the Application that are prior to April 21, 2009 are “just background”, and that the incidents that start on April 21, 2009, and onward, are timely.

16The respondents submitted that there are allegations in the Application dating back to 2005 and 2006, and that these allegations do not constitute a series of events within the meaning of the Code with incidents alleged to have occurred at the April 21, 2009 mediation and thereafter. The respondents also submit that the applicant has failed to demonstrate that her delay in filing the Application was incurred in good faith.

17Section 34 of the Code states as follows:

34(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.

18The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that the circumstances in section 34(2) exist.

19In considering the meaning of the term “series of incidents” under section 34(1)(b) of the Code, the Tribunal has adopted the following definition of the word “series”: “a number of things or events of the same class coming one after another in spatial or temporal succession”. See Pakarian v. Chen, 2010 HRTO 457. As noted in Savage v. Toronto Transit Commission, 2010 HRTO 1360, a gap of more than one year between incidents in a series would, in most cases, interrupt the series. See also Gagne v. Algoma University, 2010 HRTO 2016, at para. 19.

20It appears that there are allegations in the present Application that relate to incidents occurring in the workplace prior to March 14, 2006, and involving the applicant and the individual respondents. There is also an allegation in the Application that two of the individual respondents refused to be in the same room as the applicant at the OLRB each time her attendance was required there. While no dates or other particulars are provided with respect to this latter allegation, it appears from the applicant’s second OHSA application dated June 24, 2007, that this is alleged to have occurred at a OLRB mediation on September 20, 2006, approximately two years and seven months prior to the allegations relating to the mediation on April 21, 2009. Having regard to the considerable gap in time between the alleged incidents from 2005 and 2006 and the next allegations commencing with the mediation on April 21, 2009, I am not satisfied that the earlier incidents form a “series of incidents” within the meaning of the Code with the allegations commencing on April 21, 2009. I also note that, at the summary hearing, the applicant appeared to concede this point by stating that the earlier allegations were “just background”.

21The Application was not filed until April 21, 2010, more than four years after the incidents alleged to have occurred in the workplace, and approximately 3 years and 7 months after the September 20, 2006 mediation. The applicant has provided no explanation as to why she did not or could not have filed an Application with respect to these allegations earlier than she did. In the circumstances, the applicant has not established good faith within the meaning of section 34(2) of the Code with respect to the delay concerning the allegations from 2006 and earlier. In the circumstances, the Tribunal does not have jurisdiction to proceed with these allegations and they are dismissed.

22In light of my findings concerning delay with respect to the allegations from 2005 and 2006, I need not determine if these allegations have also been appropriately dealt with within the meaning of section 45.1 of the Code, or would constitute an abuse of process.

SETTLEMENT PRIVILEGE

23The remaining timely allegations are those beginning with the OLRB mediation on April 21, 2009 and onward. The respondents submit that much of the Application is premised on events and discussions that took place during the mediation, and that evidence relating to the mediation is inadmissible.

24Referring to the following provisions of the LRA, the respondents also submit that, from a practical perspective, the applicant will be unable to prove that the alleged comments were made because the OLRB mediator is not compellable to testify:

Testimony in civil proceedings, etc.

117. Except with the consent of the Board, no member of the Board, nor its registrar, nor any of its other officers, nor any of its clerks or servants shall be required to give testimony in any civil proceeding or in any proceeding before the Board or in any proceeding before any other tribunal respecting information obtained in the discharge of their duties or while acting within the scope of their employment under this Act.

Non-disclosure

119 (2) No information or material furnished to or received by a conciliation officer or a mediator,

(a) under this Act; or

(b) in the course of any endeavour that a conciliation officer may make under the direction of the Minister to effect a collective agreement after the Minister,

(i) has released the report of a conciliation board or a mediator, or

(ii) has informed the parties that he or she does not consider it advisable to appoint a conciliation board,

shall be disclosed except to the Minister, the Deputy Minister of Labour, an Assistant Deputy Minister of Labour or the Director of Dispute Resolution Services.

Same

119 (3) No report of a conciliation officer shall be disclosed except to the Minister, the Deputy Minister of Labour, an Assistant Deputy Minister of Labour or the Director of Dispute Resolution Services.

Same, labour relations officers, etc.

119 (4) Subject to subsection (6), no information or material furnished to or received by a labour relations officer, grievance mediator or other person appointed under this Act to effect the settlement of a dispute or the mediation of a matter shall be disclosed except to the Board or to the Director of Dispute Resolution Services.

Same

119 (5) Subject to subsection (6), no report of a labour relations officer, grievance mediator or other person appointed under this Act to effect the settlement of a dispute or the mediation of a matter shall be disclosed except to the Board or to the Director of Dispute Resolution Services.

Authorization to disclose

119 (6) The Board or the Director of Dispute Resolution Services, as the case may be, may authorize the disclosure of information, material or reports.

Competency as a witness

120. (1) The following persons are not competent or compellable witnesses before a court or tribunal respecting any information or material furnished to or received by them while being involved in an endeavour to effect a collective agreement:

121. The Minister.

122. A deputy minister in the Ministry of Labour.

123. An assistant deputy minister of Labour.

124. The Director of Dispute Resolution Services.

125. The chair or a member of a conciliation board.

126. Any other person appointed by the Minister under this Act or authorized in writing by the Director of Dispute Resolution Services.

Same

120 (2) The following persons are not competent or compellable witnesses before a court or tribunal respecting any information or material furnished to or received by them while acting within the scope of their employment under this Act:

1. The Director of Dispute Resolution Services.

2. A person appointed by the Minister under this Act or under a collective agreement to effect the settlement of a dispute or the mediation of a matter.

25The respondents submit that the above provisions of the LRA place strict limitations on the ability to compel documents from or require an OLRB mediator to testify. They also submit, and it appears, that the applicant has not obtained consent of the OLRB to compel the OLRB mediator to testify.

26I agree that the OLRB mediator is not compellable as a witness in the circumstances, and the Tribunal has recognized that the LRA contains an express prohibition on compelling evidence from mediators appointed under the LRA. See Handorf v. Babcock and Wilcox Canada, 2009 HRTO 797.

27I also note that section 119(4) of the LRA states that “no information or material furnished to or received by [a LRO]… to effect the settlement of a dispute or the mediation of a matter shall be disclosed…”. However, it does not appear to me that this provision alone, or any of the other LRA provisions referred to above, would necessarily preclude parties in attendance at an OLRB mediation from giving evidence in another forum as to what they were told by a mediator at an OLRB mediation.

28The respondents also argue, however, that the Tribunal has recognized that mediation or settlement privilege precludes a party from adducing evidence relating to documents or communications which arise in the context of settlement discussions. The respondents referred to the Tribunal’s Interim Decision in Fair-Thompson v. Toronto Linen, 2009 HRTO 1151, where the issue was whether an individual respondent should be added as a party to the proceeding. In support of her request to add the individual respondent, the applicant raised an allegation regarding something said at mediation. Although the Tribunal granted the request to add the respondent, it disregarded the allegation concerning what was said at mediation, stating as follows:

In making this determination, I have had no regard to the allegation raised by counsel for the applicant as to what was said to him at mediation as to the solvency of the corporate respondent. Discussions at mediation are confidential and without prejudice, and are not be used or relied upon by any party outside of the mediation context. Accordingly, I agree with the respondent that it was entirely improper for applicant’s counsel to have raised this matter, and I have placed no reliance upon it. (emphasis added)

29The respondents also referred to the British Columbia Human Rights Tribunal’s decision in Chalifoux v. Ulmer Contracting and Ulmer, 2008 BCHRT 144, wherein the Tribunal dismissed a late-filed complaint. The applicant stated that the last incident of alleged discrimination was a comment made at a meeting held at the Employment Standards Branch of the British Columbia Ministry of Labour. The individual respondent stated that the comment was made in the context of a confidential mediation. The Tribunal determined that the comment, made in a confidential context, was not appropriately submitted, and the Tribunal did not rely on the comment in its decision.

30The respondents submit that, in the present case, the applicant alleges that during mediation the OLRB mediator relayed comments about a mailroom clerk position that were allegedly made by representatives of the AGCO. They submit that no evidence relating to the discussions which took place at mediation are admissible.

31The respondents also submit that mediation serves an important function in the administration of justice, allowing for disputes to be resolved more expeditiously and at less financial cost to the parties. They submit that to allow a party to adduce evidence of and rely upon discussions or other events arising at mediation in support of an application under the Code would have a serious chilling effect on the willingness of parties to engage in mediation, and such a result is to be discouraged.

32The applicant referred the Tribunal to a decision of the OLRB in Lance v. Aramark Canada Ltd., OLRB 3809-03-OH, wherein the OLRB determined that an application under s. 50 of the OHSA could proceed to a consultation hearing. In the application, the applicant alleged that the responding party made a threating comment to the applicant, at a mediation meeting convened by an LRO, as a reprisal for filing an earlier application under s. 50 of the OHSA.

33In reply submissions, the respondents submit that the respondent in the Lance decision above did not appear to object to the admissibility of the alleged comment on the basis of mediation privilege and appeared to file no responding materials at all. The respondents submit that, as such, the OLRB did not address the issue of mediation privilege whatsoever in its decision. The respondents also state that the decision in Lance is distinguishable in that the comment alleged to have been made in that case was prima facie threatening in nature, whereas the comment alleged to have been made in the present case is not prima facie discriminatory.

34There is no dispute that the applicant’s allegations relating to an alleged offer of a mail clerk position occurred in the context of an OLRB mediation of her OHSA applications. The respondents maintain, and I accept, that the conversations and offers made during the mediation were “without prejudice”, privileged and confidential. They also submit that they have not waived any privilege.

35I note that neither party has referred to any final settlement agreement, nor has the applicant sought to enforce any settlement agreement. Rather, after mediation, the applicant’s OHSA applications proceeded to a hearing before the OLRB on June 30, 2009 and were dismissed. In the circumstances, it appears that the applicant is attempting to rely on “without prejudice” and confidential settlement discussions, that did not result in a resolution of her OHSA applications, as the basis for allegations of discrimination under the Code.

36I also note that in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, in the context of determining whether a settlement of a duty of fair representation complaint under s. 74 of the LRA had appropriately dealt with the substance of an application under the Code, the Tribunal stated that it was inappropriate to engage in any review of the confidential settlement process at the OLRB. In Dunn, the Commission and the complainant made reference to the process that led to the settlement agreement, including alleged statements by an LRO. While the Tribunal stated that it did not have a general role in supervising mediation processes at other tribunals, I also note that the Tribunal stated that there may be exceptional circumstances, such as where there are allegations of human rights violations during a settlement process.

37In the present case, the respondents have asserted settlement privilege with respect to confidential and without prejudice settlement discussions, and they have not waived that privilege. The alleged communications from the OLRB mediation that the applicant seeks to raise in support of allegations of discrimination before this Tribunal were clearly made during efforts to resolve two OHSA applications. Furthermore, the communications were made through an OLRB LRO acting as a mediator, and that mediator is clearly not compellable as a witness having regard to provisions of the LRA set out above.

38In the particular circumstances of this case, I see no reason for the Tribunal to depart from its usual approach of not relying upon confidential and without prejudice settlement discussions outside of mediation. Having regard to the importance of confidentiality in mediation, and considering the nature and context of the particular allegations in this case arising out of the OLRB mediation, I am also not satisfied that any exception to the application of settlement privilege is warranted in this case. In my view, the allegations arising out of the OLRB mediation are subject to privilege and therefore not properly before the Tribunal and should not be considered. These allegations are therefore dismissed.

NO REASONABLE PROSPECT OF SUCCESS

39Rules 19A.1 of the Tribunal’s Rules of Procedure, states 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.

40In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments about summary hearings, at paras. 8-10:

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.

41In her Application, the applicant alleges that she feels that she has been subjected to discrimination, harassment and reprisal because she is a female of British/Indian descent and because of her disability.

42With respect to any timely allegations that remain in the Application, outside the context of the OLRB mediation, it appears that the applicant may be alleging more generally that she was denied her previous administrative staff position. However, few particulars are provided. Aside from the allegations arising out of the OLRB mediation, the applicant alleges that she was also told on June 30, 2009, that her previous position no longer exists. She alleges that she discovered that the position still exists, and that it was confirmed by officials employed by the AGCO that another individual was still employed in her position, even after June 30, 2009. I note that June 30, 2009 appears to be the date that the applicant’s OHSA applications were heard by the OLRB. The applicant has provided no other particulars with respect to a denial of her previous position.

43At the summary hearing, the applicant asserted that she has not abandoned her position, and that she is being subjected to reprisal. She also submitted that her employer has a duty to accommodate her and she believes that she is not being accommodated because of the first complaint she made in 2006. Aside from the allegation of discrimination based on sex in the context of the OLRB mediation, the applicant did not provide any further particulars, or refer to any evidence reasonably available to her, that would support a finding of discrimination on the basis of sex. Similarly, the applicant provided no particulars, nor did she refer to any evidence reasonably available to her, that would support a finding of discrimination based on ethnic origin. With respect to disability, the applicant alleges that she has depression because of workplace discrimination, harassment and reprisal, and that she has been on a medical leave. Again, no further particulars were provided, nor did the applicant refer to any evidence reasonably available to her, that would support a finding of discrimination on the basis of disability.

44I find that the applicant has not established that there is a reasonable prospect that evidence she has, or that is reasonably available to her, can show a link between the respondent’s actions and the grounds of sex, ethnic origin and/or disability. For an application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that discrimination on the basis of a Code could be shown. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17. To the extent that there are any remaining allegations of discrimination on the basis of sex, ethnic origin and/or disability, these allegations are dismissed.

45With respect to the applicant’s allegation that she continues to be subjected to reprisal within the meaning of the Code, the applicant alleges that she previously complained about discrimination and harassment in the workplace. The respondents, on the other hand, submit that the applicant’s complaints, prior to filing her Application, were not Code-related. Rather, the applicant made complaints under the OHSA.

46I have reviewed copies of the applicant’s lengthy applications filed under the OHSA, provided by the respondents, as well as the OLRB’s decision dismissing these applications. Nowhere in any of these materials does there appear to be a reference to discrimination within the meaning of the Code. In addition, at the summary hearing, the applicant did not provide any particulars with respect to claiming or enforcing rights under the Code, prior to her correspondence dated June 29, 2009 to Mr. Major, and there is no allegation that she was subjected to reprisal in relation to that correspondence.

47As the Tribunal explained in Noble v. York University, 2010 HRTO 878, in order to establish reprisal within the meaning of the Code, it is necessary to find that the alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code. While the applicant baldly asserts that she complained about discrimination in the workplace, she did not describe any evidence at all that would support a finding that she claimed or enforced rights within the meaning of the Code as alleged in the Application. In my view, there is no reasonable prospect that any remaining allegations, based on reprisal within the meaning of the Code, could succeed, and any remaining allegations of discrimination based on reprisal are therefore dismissed.

48The applicant also baldly alleges that the individual respondent, Jean Major, the ACGO’s Chief Executive Officer, was made aware of the discrimination, harassment, and reprisals that the applicant had been subjected to up to and including June 30, 2009, but has refused to investigate and redress these issues.

49At the summary hearing, the applicant referred to a fax dated June 29, 2009, from the applicant’s representative to Mr. Major alleging discrimination at the OLRB mediation on April 21, 2009. The applicant submitted that in a copy of the fax provided by the respondents, there is a handwritten note at the top of the document where Mr. Major asks someone to review the fax and have “HR draft a response”. The applicant submits that a response to the letter was never received. No other particulars regarding any other complaints made to Mr. Major were provided.

50I also note that the applicant’s June 29, 2009 fax to Mr. Major complaining about the OLRB mediation of the applicant’s OHSA applications is dated one day before the hearing of those applications by the OLRB. The respondents in their Response submit that the allegations in the fax are false, vexatious, and an attempt to delay the hearing scheduled for the next day. They submit that the applicant sought an adjournment of the hearing to file further complaints under the Code and the OHSA with respect to the April 21, 2009 mediation. The OLRB’s decision dismissing the OHSA applications confirms that the applicant sought an adjournment, as she was contemplating filing a third application against the AGCO in relation to information conveyed by the mediator attempting to settle the applications. The adjournment request was denied.

51In my view, in the context of the ongoing litigation between the parties, and, in particular, the applicant’s indication at the OLRB hearing that a third application was contemplated in relation to the content of the June 29, 2009 fax, the day after it was delivered to Mr. Major, any allegation that a failure to respond to the fax is discriminatory has no reasonable prospect of success. Accordingly, this allegation is dismissed.

52There do not appear to be any other allegations in the Application. In the circumstances, the Application is dismissed.