Hudson v. Kingston (City), 2013 HRTO 549

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Hudson

Applicant

-and-

Corporation of the City of Kingston, Carl Smith,

Damon Wells, Daryl Townsend and Judy Brick

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: April 4, 2013

Citation: 2013 HRTO 549

Indexed as: Hudson v. Kingston (City)

WRITTEN SUBMISSIONS

Donna Hudson, Applicant

John T. Zuber, Counsel

Corporation of the City of Kingston, Carl Smith, Damon Wells, Daryl Townsend and Judy Brick, Respondents

Christopher J. Edwards, Counsel

Introduction

1This is an Interim Decision in respect of an Application filed May 14, 2010, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex. The Application alleged that the applicant had been discriminated against in a job interview, in a hiring decision, in being denied a promotion, in discipline, in comments, displays, jokes, harassment or poisoned work environment and in being denied a workplace opportunity and employment benefits. The narrative attached to her Application deals with several events allegedly occurring between 2005 and April 27, 2009. The entries for February 2009 to April 2009 focus on a training opportunity and on the applicant’s application for promotion, as well as disciplinary action on April 24, 2009 related to the applicant's reaction to the selection process for the training opportunity. The entry for April 24 indicates that the applicant was “provided with information to get assistance with anger management”.

2Pursuant to an Interim Decision dated May 4, 2011 (2011 HRTO 873), the Application was deferred pending the outcome of an ongoing workplace grievance-arbitration process undertaken by the applicant and employer respondent

3On July 16, 2012, the applicant filed a Request for an Order During Proceedings (“Request”) asking that the Application be reactivated. The Request stated that the hearing of the grievance has been completed and “[T]he applicant believes that she suffered from a psychological condition that made her disabled and such was not accommodated by her employer. This disability was not considered as part of the labour proceeding”.

4The respondent filed a Response to the Request. The respondent points out that the Request has been filed almost 9 months after the deadline set out under Rule 14 of the Tribunal's Rules of Procedure, which deals with deferrals and reactivation after deferrals. The respondent also submitted that the arbitrator who heard the grievance for which the Application was deferred considered and applied the Code to facts that included the facts at issue in the Application, and concluded that there was no duty to accommodate in the circumstances, because there was no evidence that the behaviour that gave rise to the employment discipline was linked to a ground of discrimination set out in the Code.

5I noted that the Application claimed discrimination on the ground of sex. Disability was not mentioned as a ground of discrimination in the Application, nor has the applicant applied to amend the Application to include disability. The applicant’s failure to explain the late filing of the Request or to apply to amend the Application is problematical, although the Tribunal may in some circumstances allow a late filing or late amendment.

6In addition, the decision of the arbitrator raises the possibility that section 45.1 of the Code may apply. That provision states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

7Section 45.1 is a discretionary remedy. The onus falls on the party seeking to rely upon section 45.1 to show that the other proceeding appropriately dealt with the substance of the Application: Haykin v. Roth, 2009 HRTO 2017. The provision has generally been considered in two parts: (1) was there another “proceeding”; and (2) if so, did it “appropriately deal with the substance of the Application”.

8Section 43(2) of the Code states in part that “[A]n application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules.

ORDER

9The Registrar will set a date for a hearing on this issue.

10I am not seized of this matter.